Opinion
No. 11–P–1467.
2012-11-15
COMMONWEALTH v. Robert GICHEL.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Upon review of the briefs, record appendix, and transcript, we discern nothing that would cause us to reverse the order denying the defendant's motion for a new trial.
The basis for the defendant's motion is that trial counsel was ineffective in not moving to suppress the pornography. This argument, even if not waived, is unavailing because such an effort by trial counsel would have been futile.
We can conclude with reasonable assurance that even if the defendant did not consent (which it appears he did), the search did not exceed the scope of the warrant. See Commonwealth v. Todisco, 363 Mass. 445, 449 (1973). As to whether the information in the warrant was not sufficiently fresh to justify the warrant, i.e., stale, see in this regard Commonwealth v. Kenney, 449 Mass. 840, 841–847 (2007).
The other issue raised by the defendant on appeal, even if it, too, was not waived, lacks merit. The motion judge correctly decided this question adversely to the defendant.
Order denying motion for new trial affirmed.