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Commonwealth v. Cruz

Appeals Court of Massachusetts, Suffolk

August 18, 2016

COMMONWEALTH
v.
MIGUEL CRUZ.

          Heard: March 1, 2016.

         Indictments found and returned in the Superior Court Department on March 6, 2008.

         The cases were tried before Regina L. Quinlan, J., and a motion for a new trial, filed on August 22, 2012, was heard by Raymond J. Brassard, J.

          James E. Methe for the defendant.

          Matthew P. Landry, Assistant Attorney General, for the Commonwealth.

          Present: Cypher, Cohen, & Neyman, JJ.

          CYPHER, J.

         Following a jury trial, the defendant, Miguel Cruz, was convicted of two counts of trafficking in cocaine, G. L. c. 94C, § 32E(b); two counts of distribution of cocaine, G. L. c. 94C, § 32A(c); and four counts of distributing drugs in a school zone, G. L. c. 94C, § 32J. On the defendant's consolidated appeal from his convictions of the four school zone violations and the denial of his motion for a new trial, the primary issue is whether a child care facility that enrolls younger than school aged children can qualify as a "preschool" within the meaning of the school zone statute. Concluding that it does, and finding no merit in the defendant's remaining claims, we affirm.

         Background.

         Taken in the light most favorable to the Commonwealth, the evidence showed that, on four occasions between November 20, 2007, and December 12, 2007, the defendant sold cocaine to a police officer working undercover.[1] Three of the drug transactions occurred at a street address located approximately 259 feet from the parking lot of the East Boston YMCA, and a fourth transaction was conducted in a vehicle parked 173 feet and 4 inches from the same YMCA property.[2] A private, nonprofit social service organization, the East Boston YMCA operates within its building a health center, teen programs, and the East Boston Child Care Center (center). The center is licensed as a child care facility by the Massachusetts department of early education and care. It is also accredited by the National Association for the Education of Young Children, which assesses the center's staffing levels and the educational capabilities of its teachers. Ninety-three children between the ages of fifteen months and five years were enrolled in the center at the time of the defendant's trial.

         Discussion.

         1. Sufficiency of the evidence.

         The defendant argues that the Commonwealth's evidence was insufficient to support his convictions of distributing drugs in a school zone because the center operated by the YMCA did not qualify as a "preschool" within the meaning of the statute.

         "[I]n a prosecution pursuant to G. L. c. 94C, § 32J, the Commonwealth is required to produce sufficient evidence to establish that the school is one of the types enumerated in the statute." Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 730 (1992). The school zone statute provides, as pertinent here:

"Any person who violates the provisions of [G. L. c. 94C, §§ 32A or 32E, ] while in or on, or within one thousand feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school whether or not in session, or within one hundred feet of a ...

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