Opinion
15-P-1134
02-01-2017
COMMONWEALTH v. Patrick KEANE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant raises three issues in this appeal from the revocation of his probation. First, he contends that the violation hearing was a nullity and violated due process because of the "unauthorized" participation of the Suffolk County District Attorney's office. Second, he argues that he was denied due process because he did not timely receive discovery or sufficient time to review the discovery when it was made. Third, he contends the evidence was insufficient. Finding no merit in these claims, we affirm.
With his consent, supervision of the defendant's probation was transferred from Norfolk County Superior Court (where the underlying criminal charges were prosecuted and where the defendant was convicted) to Suffolk County Superior Court. The transfer was apparently made for the defendant's convenience because he then resided in Suffolk County. In any event, the defendant raises no challenge to the transfer of his probation supervision to Suffolk County, and thus he has waived any objection to the venue of his probation supervision. See Commonwealth v. Robinson , 48 Mass. App. Ct. 329, 336 (1999). Similarly, the defendant raised no challenge below—nor does he argue here—that the Suffolk County Superior Court was not the proper venue for his probation revocation hearing or disposition. Instead, the defendant argues that—despite the permissible transfer of the supervision of his probation to the Suffolk County Superior Court, the permissible venue of the Suffolk County Superior Court, and the fact that the alleged probation violations occurred in Suffolk County—members of the Suffolk County District Attorney's office were prohibited, as a matter of law, from participating in the probation revocation hearing because the underlying criminal charges were originally brought in Norfolk County.
The defendant grounds this argument on G. L. c. 279, § 3, as amended through St. 2004, c. 65, § 27, which requires "that in all cases where the probationer is served with notice of surrender and at least one of the underlying crimes for which he is on probation is a felony, then the probation officer shall provide a duplicate copy of the notice of surrender to the district attorney, and the court shall provide to the district attorney the opportunity to be heard and present evidence at the surrender hearing." The defendant's view is that the statute's reference to "the district attorney" is limited to the district attorney of the county in which the underlying prosecution was brought and excludes the district attorney of the county to which the defendant's probation has been transferred. It follows, in his view, that the Suffolk County District Attorney's participation in his probation revocation hearing was impermissible and rendered the process a nullity. Our cases have imposed no such restriction on the statutory language, and we decline to create one here. See, e.g., Commonwealth v. Delisle , 440 Mass. 137, 138 (2003) (defendant convicted in Hampshire County, probation transferred to Suffolk County, where revocation occurred).
Passing the question whether the defendant had a right to automatic prehearing discovery, he received the "chrono notes" at issue here as soon as counsel asked for them near the beginning of the hearing. Counsel asked for nothing more than ten minutes to review the documents, a request the judge accommodated; in fact, the judge allowed counsel to review them for the duration of the lunch recess and (provided no probation policy precluded it) to make copies of the documents. After the lunch break, counsel was able to cross-examine the witness concerning the contents of the notes. In these circumstances, we discern neither an abuse of discretion nor prejudice.
Finally, the defendant argues that the evidence was insufficient to find that he had violated his probation by not completing a substance abuse program where the original probation condition contained no completion date. This argument is controlled and defeated by Commonwealth v. Bynoe , 85 Mass. App. Ct. 13, 18-22 (2014).
Order revoking probation and imposing sentence affirmed .