Opinion
13-P-1734
02-04-2015
COMMONWEALTH v. GERARDO ROSARIO.
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
The defendant, Gerardo Rosario, pleaded guilty in Superior Court to a charge of trafficking in cocaine having a net weight of fourteen grams or more. He subsequently brought a motion to vacate the judgment and for a new trial arguing that the evidence before the grand jury did not provide probable cause to indictment him, and that counsel was ineffective for failing to bring a motion to dismiss on this ground. The motion judge, who was also the plea judge, denied the motion and the defendant now appeals.
We may assume, without deciding, that, notwithstanding his guilty plea, in a circumstance such as this where the motion judge has reached the merits of the motion to vacate and for new trial and where the motion includes a claim of ineffective assistance of counsel, we may reach the merits of the defendant's claims. Nonetheless, they are unavailing. The grand jury had before it evidence sufficient to provide probable cause that a person named Gerardo Rosario, known by sight to the police officer who testified before the grand jury and whose vehicle and cellular telephone number were also known to that officer, committed the offense named in the indictment. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). The indictment of Gerardo Rosario on this charge therefore was lawful.
Of course, if the defendant were, in fact, not the Gerardo Rosario known to the officer -- something he does not aver even now -- he would have had a perfect defense had the case somehow gotten to trial. But the defendant points to no case law indicating that in order to support his indictment the grand jury must have before it additional evidence -- for example, the defendant's date of birth or address -- beyond what it had here: the defendant's name and the fact that the testifying officer knew him, knew his cellular telephone number, and knew what car was his. Given this, we think the defendant has failed to demonstrate any entitlements to dismissal prior to trial. In the absence of any likelihood of success on such a motion, his claim that his counsel was ineffective in failing to file one also fails. The order denying the motion to vacate the judgment and for a new trial is affirmed.
So ordered.
By the Court (Trainor, Rubin & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 4, 2015.