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Commonwealth v. Alves

Appeals Court of Massachusetts, Suffolk

August 27, 2014

Commonwealth
v.
Octaviano Alves

Argued June 9, 2014

Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on March 7, 2012.

A motion to expunge court and criminal records was heard by James W. Coffey, J., and a motion for reconsideration was heard by him.

Hung Tran for the defendant.

Amanda Teo, Assistant District Attorney, for the Commonwealth.

Present: Kantrowitz, Agnes, & Hines, JJ.[1]

OPINION

Agnes, J.

The single question before us is whether the proper remedy for a clerical error that results in the issuance of a criminal complaint against a person who not only did not commit the crime, but also was never the intended target of the police investigation, is to seal the record pursuant to G. L. c. 276, § 100C. In the unusual circumstances of this case, we conclude that even though the error was not corrected until the eve of trial when the complaint was dismissed, the statutory remedy of sealing the record was not the only option available to the judge,

Page 211

and that an expungement order is appropriate.[2]

[15 N.E.3d 248] Background .

Due to a clerical error, Octaviano Alves (date of birth: 1983) (Alves 1983), was charged with leaving the scene of a motor vehicle accident after causing property damage in violation of G. L. c. 90, § 24(2)( a ) (criminal docket number 1207CR1074). Alves 1983 did not commit the offense, nor was he ever suspected of committing the offense. The actual perpetrator, i.e., the driver of the vehicle who left the scene, was Octaviano Alves (date of birth: 1977) (Alves 1977). Alves 1977, the correct defendant, was apprehended by the police, but was not arrested. A citation was delivered to him in hand. The police accurately recorded Alves 1977's name, date of birth, Massachusetts license number, and home address. The police filed a timely application for a criminal complaint against Alves 1977. After a " show cause" hearing attended by Alves 1977, see G. L. c. 218, § 35A, as amended through St. 2004, c. 49, § 200, probable cause to issue process was found to exist, but, due to a clerical error, the summons and the complaint contained an incorrect date of birth that corresponded to Alves 1983.

Although the summons and complaint were mailed to Alves 1977's address, he did not appear for arraignment and was defaulted. However, due to the clerical error, the default was recorded incorrectly on the record of Alves 1983, who learned about it during a subsequent appearance in another court. The source of the error was not immediately apparent, and did not become clear to all concerned until about one year after the incident occurred, when, on February 5, 2013, the trial in the case was set to begin. At that time, the prosecutor, the police, the judge, and the probation department agreed that Alves 1983 was factually innocent of the crime and was never the intended target of the police investigation. The judge decided against substituting ...


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