Heard: March 1, 2016.
found and returned in the Superior Court Department on March
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.
E. Methe for the defendant.
Matthew P. Landry, Assistant Attorney General, for the
Present: Cypher, Cohen, & Neyman, JJ.
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.
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. 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. 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
Sufficiency of the evidence.
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
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 ...