Opinion
14-P-1205
08-05-2015
COMMONWEALTH v. CEDRIC WHITE.
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
There was sufficient evidence before the probation revocation judge to permit him to find by a preponderance of the evidence that the defendant committed the alleged assault and battery. The defendant's subsequent acquittal at a criminal trial of that charge does not alter that. See Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006). Neither the acquittal, the victim's testimony at trial (which was in substance consistent with her testimony at the revocation hearing), nor the investigator's report submitted by the defendant compels the conclusion that justice will not be served if there is no new revocation hearing. The judge's on-the-record findings satisfy the defendant's due process rights. Commonwealth v. Morse, 50 Mass. App. Ct. 582, 593 (2000). As a consequence, the denial of the motion for a new hearing was not an abuse of discretion.
Finally, the defendant argues that the record included no evidence that violation of a criminal law violated a condition of his probation on the underlying offenses. The defendant, however, raises this claim for the first time on appeal. Because it has not been reviewed in the first instance in the trial court under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), we decline to address it.
Order revoking probation affirmed.
Order denying new probation violation hearing affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 5, 2015.