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Following are the summaries of decisions issued by the Appeals Court pursuant to Rule 1:28. In reporting these unpublished decisions, Massachusetts Lawyers Weekly reminds readers that the decisions may be cited for their persuasive value but not as binding precedent.
Editor's note: The full text of these decisions can be ordered at lwopinions.com.
Civil practice
SDP - Classification - Timing
Where a plaintiff has been classified as a Level 3 sex offender, the classification was premature and accordingly must be reversed.
"In this case, the sex offender classification hearing was held two and one-half years before the plaintiff's anticipated release date. Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75 (2012) (Doe 6904), held that a classification hearing must be held within a reasonable time before the individual's release from incarceration. In that case, the hearing was held four years before the plaintiff's scheduled release date. ... However, the factors that led us to conclude in that case that the hearing was held an unreasonably long time before release are present here as well. Consequently, we conclude that under Doe 6904 the hearing in this case was held too long before the plaintiff's release date.
"At the time of the plaintiff's classification, he testified that he was scheduled to appear before the parole board in February, nine months after the classification hearing. To the extent the board argues that the plaintiff's then-upcoming parole hearing could justify holding a hearing such as this an otherwise unreasonably long time prior to release, that argument is foreclosed by Doe 6904 itself, which presented a similar circumstance. ...
"The judgment is reversed. A new judgment shall enter vacating the final classification decision of the board and remanding the matter for a new hearing. The board's recommended classification shall stand pending the outcome of the new classification hearing. ..."
Doe, Sex Offender Registry Board No. 196272 v. Sex Offender Registry Board (Lawyers Weekly No. 81-655-14) (2 pages) (Appeals Court - Unpublished) (No. 14-P-420) (May 21, 2014).
Criminal
Drugs - Constructive possession
Where a defendant was convicted after a bench trial for possession of a class B controlled substance, the commonwealth failed to prove constructive possession.
"The visibility of the drugs,...