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Commonwealth v. Newberry

Supreme Judicial Court of Massachusetts, Suffolk

September 18, 2019

COMMONWEALTH
v.
Deneisha D. NEWBERRY.

         Argued February 5, 2019.

         [131 N.E.3d 231] District Court, Pretrial diversion, Arraignment. Practice, Criminal, Arraignment.

          CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on July 9, 2018. The case was reported by Lowy, J.

         John P. Zanini, Assistant District Attorney (Cailin M. Campbell, Assistant District Attorney, also present) for the Commonwealth.

         Sarah M. Joss, Special Assistant Attorney General (Nickeisha J. Davidson also present) for Massachusetts Probation Service.

         Maureen Stanton Flaherty, Hyde Park, for the respondent.

         Dana Alan Curhan, Boston, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

         Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          OPINION

         LENK, J.

          The pretrial diversion statute, G. L. c. 276A, allows certain first-time offenders, who are charged with specified offenses in the District Court or the Boston Municipal Court, to seek pretrial diversion to a treatment program rather than proceed on the trial track. If, after screening, the probation service determines that the individual is eligible for pretrial diversion, and the program to which the probation service refers the individual for assessment determines [131 N.E.3d 232] that the person would benefit from participation

Page 187

in the program, a judge has discretion to stay or continue the criminal proceedings and assign the individual to a diversion program. See G. L. c. 276A, § § 2, 3, 5. If the person successfully completes the program, the judge may dismiss the criminal charges. G. L. c. 276A, § § 5, 7.

         In this matter, we consider two issues arising under the pretrial diversion statute. First, whether the pretrial diversion statute, G. L. c. 276A, § 3, requires, at the Commonwealth’s request, that a judge arraign a defendant before he or she may take advantage of a pretrial diversion program. Second, whether, during the statutory screening period, see G. L. c. 276A, § 3, or thereafter if the Commonwealth does not seek arraignment, a judge has authority to order conditions of release, including global position system (GPS) monitoring or drug screening by the probation service.

         As to the first question, we conclude that, under G. L. c. 276A, § 3, a judge may not decline to arraign an adult defendant, over the Commonwealth’s objection, and instead direct the defendant to a pretrial diversion program. Although other pretrial diversion programs statutorily mandate that a judge may not arraign an eligible defendant before that defendant has an opportunity to complete a pretrial diversion program, the language of G. L. c. 276A, § 3, requires arraignment, at the Commonwealth’s request, before a defendant can participate in a pretrial diversion program. Compare G. L. c. 12, § 34, G. L. c. 119, § 54A, and G. L. c. 276B, § 2, with G. L. c. 276A, § 3.

         As to the second question, we conclude that, whether during the screening period prior to arraignment, see G. L. c. 276A, § 3, or thereafter if the Commonwealth does not seek arraignment, a judge may order conditions of release. In ordering those conditions, should a judge determine that supervision by the probation service is necessary, the judge has authority to order those services.

         Background .

          The essential facts are undisputed. In November 2017, the defendant was charged in the Boston Municipal Court with assault and battery, G. L. c. 265, § 13A (a), after an alleged altercation with her boyfriend’s former girlfriend. At her initial appearance before a judge of that court, the defendant moved to continue her arraignment so that she could be assessed for eligibility for pretrial diversion. Over the Commonwealth’s objection, the judge continued the arraignment for two weeks. The judge also ordered, as a condition of release, that the defendant stay away from the alleged victim; the Commonwealth did not object

Page 188

to the condition. At the next hearing, the judge determined that the defendant was eligible for pretrial diversion and continued the case for about ninety days, pursuant to G. L. c. 276A, § 5. The Commonwealth did not object to the defendant’s placement in a pretrial diversion program, but again objected to the lack of arraignment.

         Thereafter, the matter was continued a number of times, for reasons, such as court scheduling, that are unrelated to the issues before us. Arguing that the victim had accused the defendant of two instances of harassment after pretrial diversion had begun, the Commonwealth sought at several of those hearings, before different judges, to have the defendant removed from pretrial diversion and the case returned to the trial list. The Commonwealth also moved to arraign the defendant. The defendant requested that GPS monitoring be imposed, in order to allow her to prove that she had not been in contact with the victim. The Commonwealth did not oppose the imposition of GPS monitoring, and a judge allowed the request. That judge also scheduled an evidentiary hearing to determine [131 N.E.3d 233] whether the defendant indeed had been in contact with the alleged victim, in violation of the terms of her pretrial diversion; the judge commented that he would not arraign the defendant until he heard from the victim.[1]

         The probation service thereafter appeared ex parte before the judge, arguing that it had no authority to conduct GPS monitoring of the defendant, because she had not been arraigned; the judge again ordered that GPS be imposed. While the evidentiary hearing was pending, the Commonwealth filed a petition for extraordinary relief, pursuant to G. L. c. ...


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