Opinion
10-P-2265
11-07-2011
COMMONWEALTH v. COREY FRAZER.
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
We affirm the order modifying the defendant's probation, substantially for the reasons set forth in the Commonwealth's brief. The judge would have been warranted in modifying the terms of the defendant's probation based upon the defendant's admitted failure to make payments and report to probation as ordered. Beyond those failings, the judge was also warranted in concluding that modification was appropriate because the defendant had committed the new offense of possession of marijuana with the intent to distribute while on probation.
The Commonwealth introduced sufficient evidence at the surrender hearing to establish that violation by a preponderance of the evidence. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995); Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).
Holyoke police Officer Kevin Thomas stopped the defendant leaving an area around the Ashley Reservoir where a large number of young people were having a keg party. The defendant was one of three or four people attracting Thomas's attention because the defendant was carrying a backpack. In searching the defendant's backpack, Thomas discovered a plastic container with three or four bundles (and an additional loose quantity) of a green leafy substance that Thomas recognized as marijuana by sight, smell, and touch based upon his training and experience. Gilberto Camacho, with whom the defendant was walking, also possessed packaged marijuana, along with a scale. The amount of marijuana found, its packaging, and the attending circumstances provided a sufficient basis to establish by a preponderance of the evidence that the defendant possessed marijuana with the intent to distribute it.
There is no merit to the defendant's contention that his attorney was ineffective in failing to move to suppress the marijuana. See Commonwealth v. Olsen, 405 Mass. 491, 493-496 (1989) (evidence seized in violation of Fourth Amendment admissible in revocation hearing where searching officer had no reason to know of defendant's probationary status).
Order modifying probation affirmed.
By the Court (Grasso, Brown & Kantrowitz, JJ.),