Opinion
No. 11–P–486.
2012-05-21
COMMONWEALTH v. Abisola ALADE.
By the Court (KANTROWITZ, BERRY & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On June 20, 2009, the defendant struck with her car a taxicab owned by MIR Taxi and operated by Town Taxi pursuant to a lease agreement then in effect. The defendant was charged with operating under the influence of liquor, see G.L. c. 90, § 24(1)( a )(1), she admitted to sufficient facts, and the case was continued without a finding. The defendant was placed on probation and, following a restitution hearing, was ordered to pay restitution in the amount of $2,860. In this appeal, the defendant claims that the amount of the restitution order was not supported by sufficient evidence. We affirm.
As relevant to the amount of restitution ordered, the major point of contention at the restitution hearing lay in the estimates presented in an insurance adjuster's appraisal versus that of Town Taxi.
The insurance adjuster's appraisal estimated that the taxicab should have been repaired and ready for use in seven days. In contrast, Town Taxi's keeper of records testified and presented an invoice indicating that it had lost use of the taxicab for fifty-four days.
What was principally at issue in the restitution hearing was the claim for additional loss of use damages beyond those that the insurance company already had paid.
The defendant continually refers to $7,860 and contends that this is an excessive figure for economic loss from the damage to the taxicab. But this figure combines the amount in property damage ($3,065.25) and in loss of use ($1,934.75) paid to MIR Taxi by the defendant's insurance company plus the restitution order. In this appeal, what is before us is the validity of the restitution order itself, i.e., $2,860.
“The judge determines the weight and credibility of the testimony.” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). Based on the evidence presented, the judge arrived at a restitution figure consistent with the taxicab being out of service for thirty-seven days. So viewed, the $2,860 restitution figure would represent twenty-two days of loss of use-which would be supplemental to the fifteen days of loss of use damages already paid by the insurance company. We discern neither an abuse of discretion in the process the judge employed to arrive at the restitution figure, nor any clear error in the factual determination yielding the restitution figure.
See generally Commonwealth v. McIntyre, 436 Mass. 829, 834–835, 767 N.E.2d 578 (2002).
The Commonwealth also argues that we should dismiss this appeal without examining the merits because the defendant's notice of appeal was filed thirty-seven days after entry of the restitution order, and was, thus, untimely. However, a single justice of this court granted the defendant's motion to file a late notice of appeal. To this, the Commonwealth responds that the single justice should have denied this motion because the defendant failed to show excusable neglect or good cause for the delay in filing. We reject this contention, particularly in light of the Commonwealth's failure to include in the record appendix the materials reviewed by the single justice.
Judgment affirmed.