Opinion
15-P-372 15-P-373
03-11-2016
COMMONWEALTH v. CHRISTOPHER VACCARELLO (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the dismissal of the complaints against the defendants, Christopher Vaccarello (Vaccarello) and David Grigorakos (Grigorakos), with prejudice. The Commonwealth argues that the District Court judge abused his discretion when he sua sponte dismissed the complaints with prejudice. We agree and reverse.
Both defendants were charged with one count of possession of drug paraphernalia with intent to distribute, in violation of G. L. c. 94C, § 32I. The charges stem from the retail sale of pipes, vaporizers, and accessories from the now closed store owned by the defendants called The Grateful Head.
Procedural history. A synopsis of the procedural history will be instructive for this appeal as the judge dismissed this case with prejudice because the "Commonwealth [was] not ready for trial." On April 8, 2014, the defendants' motion to dismiss the complaint was denied. The parties scheduled a trial for September 19, 2014. On September 5, 2014, separate counsel was appointed for Vaccarello at which time the judge noted it was unlikely that the case would be tried on September 19, 2014, but it would be tried before December 1, 2014. The defendants waived their rights to a jury trial on September 11, 2014, and rescheduled a trial date for November 21, 2014. On October 2, 2014, the Commonwealth filed a motion to continue trial date at the Framingham Division of the District Court Department clerk's office. The basis for this motion was that the Commonwealth learned that its main investigator and first witness would be unavailable on the scheduled trial date.
The certificate of service indicates that the motion was served, by mail, on each defendant's counsel. There is no indication that the motion was served by electronic mail message (e-mail). The pretrial order dated August 26, 2014, directed counsel to "furnish electronic copies of all papers filed pursuant to this order. They should be delivered as scanned attachments to email to the Court directed to [the judge's e-mail address] with copies of all submissions directly to opposing counsel."
The investigator and first witness was unavailable from November 21, 2014, to November 25, 2014.
When this motion went unattended for almost six weeks, the Commonwealth, on November 11, 2014, filed its motion to continue trial date to a date in December of 2014. Accompanying this motion was a cover letter that stated that the motion was sent by electronic mail message (e-mail) directly to the judge. On November 14, 2014, the judge denied the Commonwealth's request for a continuance of the November 21, 2014, trial. On November 21, 2014, the parties convened for trial, and the assistant district attorney (ADA) covering that day indicated that the assigned ADA could not appear due to a trial in another court. The judge indicated that he would hold the case until noon because November 21, 2014, was the scheduled day of the trial. When the Commonwealth was unable to proceed at noon, the judge dismissed the case on the ground that the Commonwealth was not ready for trial. The judge stated:
The judge put on the record that he had received a telephone call from a Superior Court judge that morning that stated that the assigned ADA was in Lowell where a trial she was second-seating had concluded and the jury were deliberating.
When the judge initially stated he was dismissing the matter, the Commonwealth asked that the dismissal "be without prejudice."
"The matters are dismissed. The Commonwealth is not ready for trial. . . . Commonwealth's not ready. The case is dismissed, period. And it's dismissed. How am I going to dismiss it? Because the Commonwealth has failed to prosecute. And if I don't dismiss it with prejudice, the Commonwealth will re-bring it, so I'm going to dismiss it with prejudice, because this case was prepared, it was ready and I denied a motion for a continuance, which finally got to me. I denied that motion on November 14th and I hope notice was sent promptly. I heard nothing from anybody about anything different about the case being prepared. And I came over here this morning ready for trial and the matters have been scheduled for trial since September and under all the circumstances, there is no reason for delaying these matters any longer. Dismissed with prejudice."
Discussion. The Commonwealth argues that the judge erred by dismissing the matter with prejudice. One of the defendants, Vaccarello, agrees with the Commonwealth that the judge erred by dismissing the matter with prejudice., Given the circumstances, this was "too drastic a remedy." Commonwealth v. Cronk, 396 Mass. 194, 200 (1985). See Commonwealth v. Borders, 73 Mass. App. Ct. 911, 913 (2009) ("Dismissal of a criminal complaint with prejudice is a draconian sanction that must be reserved for cases manifesting egregious prosecutorial misconduct or a serious threat of prejudice to the defendant").
The other defendant, Grigorakos, did not file a brief but complied with the procedure set forth in Commonwealth v. Goewey, 452 Mass. 399, 405 n.5 (2008).
Vaccarello also argues that that we should "reinstate" the judge's original dismissal without prejudice. Where a dismissal is without prejudice, "the judge's action should be upheld in the absence of an abuse of discretion." Commonwealth v. Anderson, 402 Mass. 576, 579 (1988). However, a dismissal without prejudice is not before us because the judge's only order was for a dismissal with prejudice.
A dismissal with prejudice may be entered if there has been "a showing of egregious misconduct or at least a serious threat of prejudice." Commonwealth v. Connelly, 418 Mass. 37, 38 (1994), citing Commonwealth v. Cronk, supra at 199. Here, there was no egregious misconduct by the Commonwealth nor was there any showing of prejudice to the defendants' ability to receive a fair trial.
In fact, defense counsel were amenable to the continuance and even gave the ADA a few dates in December when they were available.
Judgments of dismissal vacated as to both defendants, Grigorakos and Vaccarello.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 11, 2016.