Opinion
16-P-745
05-04-2017
COMMONWEALTH v. ANTHONY CRISTALLO.
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 defendant, Anthony Cristallo, appeals from an order of a Superior Court judge denying his motion to assess damages for the value of cellular telephones (cell phones), which were lost after being seized by the police when the defendant was arrested for narcotics offenses in 2009. He also appeals from an order denying his motion to reconsider. Because we agree with the judge that the defendant is not entitled to damages for items that were lawfully seized, we affirm.
The defendant's notice of appeal is not timely, because it was not "filed with the clerk of the lower court within thirty days after entry of the judgment or order appealed from." Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2000). However, the Commonwealth has not raised the issue of timeliness, "the clerk in the trial court assembled the record, the appeal was docketed without objection in the Appeals Court," and the Commonwealth has filed a brief. Commonwealth v. White, 429 Mass. 258, 265 (1999). We therefore address the merits.
Background. During the course of the investigation that culminated in the defendant's plea of guilty to trafficking in heroin, members of the Massachusetts State police (MSP) seized a number of items from the defendant, including money, a passport, and the cell phones. In July of 2014, the defendant filed a motion for the return of the cell phones and his passport. The Commonwealth agreed to return the defendant's passport, but objected to the return of at least one of the cell phones because it had been used to facilitate the crime. A judge of the Superior Court allowed the defendant's motion, and the Commonwealth was ordered "to facilitate the delivery of items to a third party designated by the defendant."
As it turned out, the MSP could not locate the cell phones. The defendant then filed a motion for a hearing to assess damages against the Commonwealth. Following a nonevidentiary hearing before a second Superior Court judge, the Commonwealth submitted an affidavit by MSP Sergeant Mark Marron in which he detailed the efforts made by himself and other members of the MSP to locate the cell phones. The Commonwealth also submitted a letter in which it asserted sovereign immunity under § 10(d) of the Massachusetts Tort Claims Act. See G. L. c. 258, § 10(d).
Thereafter, the second judge denied the defendant's motion with prejudice. She credited Marron's statements that the cell phones could not be found after an exhaustive search. She then concluded that a hearing to assess damages was not warranted because the defendant was not entitled to compensation. The second judge also denied the defendant's motion for reconsideration.
Discussion. The motions were properly denied. First, as the defendant acknowledges, the Commonwealth is immune from liability in cases where, as here, property lawfully detained by any law enforcement officer is lost. See Vining v. Commonwealth, 63 Mass. App. Ct. 690, 695 (2005). Second, contrary to the defendant's assertion, the Commonwealth did not waive its defense under § 10(d) by failing to raise it at the first available opportunity; a defense under § 10(d) can be raised at any time. Vining, supra at 696.
Order denying motion to assess damages affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Vuono, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 4, 2017.