Opinion
12-P-55
12-20-2012
COMMONWEALTH v. BENJAMIN J. CELLETTI.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Benjamin J. Celletti appeals from an order of the Appellate Division of the District Court Department affirming a finding of his responsibility for a civil violation of failure to observe a vehicular stop sign. He argues (1) that the District Court judge and the Appellate Division committed error of law by not ordering dismissal of the citation by reason of the citing officer's noncompliance with the requirement of G. L. c. 90C, § 2, for issuance of a citation at the time and place of the alleged violation; and (2) that the District Court judge exhibited bias against Celletti and declined to recuse herself from the case, in violation of his entitlement to due process. We find both contentions meritless and affirm the Appellate Division affirmance of the finding of responsibility for the civil infraction. Background. The District Court judge received the following testimony from State police Sergeant Eugene O'Neill. At about 11:10 P. M. on September 1, 2010, Sergeant O'Neill observed Celletti slow down but fail to stop at a stop sign on a ramp connecting Route 93 northbound to Topsfield Road in the town of Topsfield. O'Neill followed the defendant's vehicle and saw it turn without stopping at a second stop sign at the corner of Topsfield Road and Elm Street. O'Neill activated his blue lights and pulled the vehicle over a short distance from that intersection. As he approached the vehicle, O'Neill saw a cigarette butt launch from the driver's window.
Also known as Benjamin J. Celletti-Nissenbaum.
At the conclusion of the stop, the officer issued a citation (the original citation) to Celletti for violation of G. L. c. 89, § 9 (failure to stop at a stop sign) and for violation of G. L. c. 90, § 22G (littering by reason of discard of the cigarette).
The officer submitted the citation to the Motor Vehicle Insurance Merit Rating Board (merit board). By letter dated September 15, 2010, the merit board returned the citation to the State police because the violation of G. L. c. 90, § 22G, constituted a criminal offense requiring submission to the District Court rather than the merit board. When O'Neill received the returned citation from the merit board on or about September 24, 2010, he reissued a citation to Celletti (the second citation) reciting only the civil stop sign violation. By an accompanying letter, dated September 24, 2010, the officer explained to Celletti that he was reducing the charge of criminal littering to a warning.
Celletti requested and received a District Court's hearing upon the stop sign citation. He contended that the second or reissued citation failed to comply with the requirement of G. L. c. 90C, § 2, as appearing in St. 1985, c. 794, § 3, because the officer had not issued it 'at the time and place of the violation' and that such a failure 'shall constitute a defense in any court proceedings for such violation.' The clerk nonetheless issued a finding of 'responsible' for the violation contained in the reissued citation. Celletti filed a timely claim of appeal to the District Court. A District Court judge conducted an evidentiary hearing. Upon the basis of Sergeant O'Neill's testimony, she found Celletti responsible. He then filed a timely claim of appeal to the Appellate Division. That court affirmed. Celletti has now appealed to this court pursuant to G. L. c. 231, § 109.
Analysis. 1. Statutory requirement of prompt citation. Celletti first invokes the phrase of G. L. c. 90C, § 2, requiring a citation at the time and place of the alleged violation and rendering the omission of such a citation as a defense to any cited violation. He does not address the important additional phraseology of the statute: 'except where . . . the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure.'
Decisions construing the statute have established its purposes as (a) prevention of manipulation of citations (a safeguard against the 'fixing' of traffic charges); and (b) provision of prompt notice to the alleged offender in order to enable him or her to prepare a defense. See Commonwealth v. Cameron, 416 Mass. 314, 316 (1993); Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 685 (2002). Noncompliance with the statute is not fatal to a civil infraction allegation if the omission does not obstruct the purposes of the statute. Commonwealth v. Babb, 389 Mass. 275, 283 (1983). Commonwealth v. Moulton, supra at 684.
The circumstances here fall obviously within the statutorily authorized exception. The officer forwarded a second citation in order to eliminate a criminal violation and to comply with administrative procedure governing the stop sign infraction allegation. He did not issue a single and dilatory citation depriving Celletti of his opportunity to prepare a defense facilitated by prompt notice; nor did the second citation issue as a result of any improper manipulation of the violation. Throughout the process, Celletti had clear and specific notice of the stop sign infraction allegation and full opportunity to prepare a defense to it. Celletti's arguments to the contrary in the Appellate Division and in this court are thoroughly sophistical.
2. Claim of bias. We have examined closely the transcript of the exchange between the District Court judge and Celletti's trial counsel (also his appellate counsel) at the conclusion of Sergeant O'Neill's testimony. The circumstance of the exchange, and the comments of the judge from the bench and again at sidebar, show that her impression that Celletti was not going to submit evidence was a brief misunderstanding. Indeed, Celletti's counsel may have caused a misunderstanding by cutting off the judge's question to him about his intention to offer testimony for Celletti. The judge offered the opportunity for further testimony and stated that her mind remained open. Celletti's counsel declined the invitation to offer testimony. He then added that he was not requesting the judge to recuse herself.
In these circumstances, counsel cannot now respectably argue that the judge exhibited bias so as to deprive his client of due process of law; nor can he reasonably argue that the judge improperly failed to recuse herself by reason of a failure to conduct the two-step process of subjective and then objective evaluation of her neutrality. See Lena v. Commonwealth, 369 Mass. 571, 575 (1976). Nor can he justify his failure to make the required immediate request for recusal. Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 549-550 (1998). Demoulas v. Demoulas, 432 Mass. 43, 52-53 (2000).
In these circumstances, Celletti's counsel shows no genuine basis for the claim of bias. The record discloses only a fleeting misunderstanding capable of immediate cure by cooperation from Celletti's counsel. Further, the judge's retention of the case indicates that, as she stated, she had performed the subjective component of the recusal examination. Additionally, the record makes obvious that she had implicitly conducted the objective component as well. Indeed, counsel's explicit statement that he was not requesting recusal confirmed his apparent satisfaction that the judge had completed both elements of the test. The present contention has the appearance of a Monday morning fabrication.
Decision and order of Appellate Division affirmed.
By the Court (Meade, Sikora & Hanlon, JJ.), Clerk