Heard: October 12, 2018.
Indictments found and returned in the Superior Court
Department on March 4, 2002. A proceeding for revocation of
probation was heard by Renee P. Dupuis, J.
B. Ganguly for the defendant.
E. Lee, Assistant District Attorney, for the Commonwealth.
Present: Vuono, Meade, Milkey, Desmond, & Wendlandt,
case, we consider the meaning of a special probation
condition to "have no involvement with minors without
responsible adult supervision." Because we conclude that
the defendant had sufficient notice that trying to enter a
grammar school through a locked rear door, without adult
supervision and during classroom hours, violated this
condition, we affirm the finding of a violation of the
defendant's terms of probation and affirm the order
revoking probation and imposing sentence.
2001, the defendant was arrested for displaying child
pornography and exposing himself to two girls, aged nine and
eleven, who were walking home from school. For that offense,
the defendant pleaded guilty in 2002 to two counts of
dissemination of matter harmful to a minor, two counts of
dissemination of child pornography, and three counts of
possession of child pornography. He received concurrent terms
of four to five years in State prison on his convictions of
dissemination of matter harmful to a minor and possession of
child pornography. He also received a five-year probationary
term for his convictions of dissemination of child
pornography, which was set to begin after his release from
State prison. One of the special conditions of his probation
was to have "no involvement with minors without
responsible adult supervision."
2002 convictions also violated an existing probation order in
Florida, stemming from another incident where the defendant
had exposed himself to children. Thus, once he completed his
Massachusetts prison term in 2006, the defendant was
extradited to Florida. The defendant returned to
Massachusetts in December, 2012, and his five-year
probationary term began at that time.
roughly eight o'clock in the morning on December 5, 2013,
off-duty New Bedford Police Sergeant Joshua Fernandes was
walking near a Catholic grammar school in New Bedford when he
made eye contact with the defendant, who was walking on the
sidewalk of a cross street that ran along the front of the
school. When Sergeant Fernandes peered over his shoulder, he
saw the defendant do an "about face" and reverse
his direction to move toward the school building. The
building was surrounded by a ten-foot high chain link fence,
with gaps at the stairwells that led to the school's
exterior doors. Sergeant Fernandes observed the defendant
enter the schoolyard and approach a ground level door in the
back of the school. The door was secured by a keypad locking
mechanism, equipped with an intercom and surveillance system,
and was marked, "Please close the door firmly behind
you." The sergeant watched the defendant peer into the
school through the glass portion of the door, grab the door
handle, and "attempt to open it," but he was
thwarted by the locking mechanism.
defendant then followed a blacktopped area on school property
toward another entrance in the back of the building. At that
point, Sergeant Fernandes used his cell phone to call a
marked unit for assistance, and subsequently lost sight of
the defendant for approximately thirty seconds. When the
sergeant next saw the defendant, he was on the sidewalk
adjacent to a third entrance to the school, heading toward a
nearby bus stop.
of the defendant's behavior, Sergeant Fernandes called
for a marked police unit to the area and approached the
defendant at the bus stop and identified himself as a police
officer. He twice asked the defendant why he had tried to
gain access to the school, but the defendant did not give a
direct answer. Sergeant Fernandes next asked what he was
doing in the area. The defendant stated that he had taken a
bus from his home to Melville Towers, a location in downtown
New Bedford, and then had gone to a store north of the school
to buy cigarettes. Sergeant Fernandes was familiar with the
area, and knew there was a store adjacent to Melville Towers
that sold cigarettes. He therefore inquired why the defendant
would walk away from Melville Towers to purchase cigarettes.
He received no response. Once the marked unit arrived, the
sergeant ran a check on the defendant and learned he was a
registered level three sex offender. Sergeant Fernandes
notified the school of the incident and applied for a
criminal complaint to issue for one count of trespass.
defendant was served with a written notice of probation
surrender alleging that he had violated the special condition
of probation to "have no involvement with minors without
responsible adult supervision." The notice also alleged
that he had failed to obey a New Bedford ordinance
prohibiting sex offenders from entering "child safety
zones" (as defined in the ordinance) in violation of the
condition of probation that he obey local, State, and Federal
laws. An initial probation surrender hearing was scheduled
for January 2, 2014, and the violation hearing was held
across a series of dates in 2014 and 2015.
defendant testified on October 10, 2014, at the probation
violation hearing. In that hearing, he admitted that he knew
the building was a school, and claimed that he had approached
the school to inquire about a food pantry that was sponsored
by a nearby church. The judge did not credit the
defendant's testimony,  and on October 16, 2014,
found him to be in violation of the terms of his probation.
On August 12, 2015, the judge revoked the defendant's
probation and sentenced him to ten to fourteen years in State
prison. This appeal followed.