The Massachusetts Appeals Court ruled today that DeLuca's Market can keep using a narrow alley off Beacon Street for once-daily trash removal, but told the market it can no longer use the space for parking cars or trucks.
At issue was a 1947 agreement between the market and the owners of three neighboring residential buildings.
The condo associations of the three buildings sued DeLuca's in 2013 to get it to stop all motorized use of the passageway, ownership of which is split down the middle between the market and the residential buildings. The residential trustees cited clauses in the agreement that limited use of it to pedestrians and hand carts.
But the restrictions on use expired in 1997 and the trustees never tried to renew them, the court said.
At the same time, the court rejected DeLuca's argument that it had been parking vehicles in the alley for so long it had gained the permanent right to park vehicles there, under a legal concept known as "easement by prescription."
In its ruling, the justices agreed with a Superior Court judge who had awarded DeLuca's the right to use the passageway for trash removal once a day.
The judge found that it is not possible to park in the passageway without interfering with others' right to pass. Thus, we agree that no party has the right to park in the passageway. The judge also concluded that a temporary stop of a vehicle in the passageway once per day to load trash for transport to another location does not unreasonably impair the King's Chapel and LLC plaintiffs' right of passage. On the record presented, we cannot say the judge's conclusion was clearly erroneous. So long as continued temporary stopping once per day does not unreasonably impede the King's Chapel and LLC plaintiffs' easement rights, this use may continue.
The Supreme Judicial Court ruled today that while current field-sobriety tests were developed to gauge whether somebody is too drunk to drive, they can provide valuable information if the driver is suspected of being stoned, instead.
But, the court cautions, police and prosecutors will have to use more than just field-sobriety tests as an argument to a jury or judge that a person was operating under the influence of marijuana - because scientists are still debating the best way to prove that an impaired driver was, in fact, impaired by pot consumption.
The ruling comes in the case of a guy charged with operating under the influence of marijuana in Milbury, after a state trooper stopped him because his rear lights weren't on and then noticed a haze and the distinct smell of smoked pot inside.
Although the man was able to recite numbers backwards and follow a moving object, he had problems with tests involving walking heel to toe and standing on one foot:
Rather than standing heel to toe, with his right foot in front and his left toes touching his heel, as he had been shown, Gerhardt moved his feet so that they were side by side; he also did not turn around as instructed. French determined that "the results of this test indicated that Gerhardt was impaired." The trooper then provided instructions and gave a demonstration of the [stand on one leg] test, and Gerhard indicated that he understood. In performing the test, however, Gerhard did not remain upright on one foot, instead putting his foot down multiple times, and swayed.
The court said that field-sobriety tests remain useful in helping a police officer determine whether a driver is too impaired to drive - but by themselves are not enough proof of being impaired by marijuana.
The absence of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean that they have no probative value. A police officer makes numerous relevant observations in the course of an encounter with a possibly impaired driver. There is no doubt that an officer may testify to his or her observations of, for example, any erratic driving or moving violations that led to the initial stop; the driver's appearance and demeanor; the odor of fresh or burnt marijuana; and the driver's behavior on exiting the vehicle.
In our view, certain of the FSTs also may provide information that is relevant to the question of a defendant's impairment, and a police officer may testify, as a lay witness, to his or her observations of the defendant's performance. In particular, observations of the performance of the OLS and the WAT may be admissible as evidence of a defendant's balance, coordination, ability to retain and follow directions, and ability to perform tasks requiring divided attention, and the presence or absence of other skills necessary for the safe operation of a motor vehicle. We see no reason why an officer's observations of a defendant's behavior on being asked to walk a straight line or to stand on one foot should be excluded because the scientific community's understanding of precisely how this correlates with marijuana use is still evolving. We are not persuaded, however, that the FSTs can be treated as scientific tests establishing impairment as a result of marijuana consumption. The scientific community has not reached a consensus as to whether a defendant's performance on any combination of FSTs, or on any individual FST, is correlated with marijuana use or impairment. The unsettled state of the scientific research suggests that FST evidence neither should be treated as a definitive test of impairment nor excluded entirely from consideration by the finder of fact.
Federal and Boston investigators are continuing to carve up a string of Boston fried-chicken places owned by Pakistani nationals and Americans of Pakistani origin in an investigation that has already led to guilty pleas by two men and the shutdown of a Hyde Park fried-chicken joint.
Boston Police Det. Bernard McCrevan told the Boston Licensing Board this morning that the investigation into New York and Crown Fried Chicken operations continues, more than four years after federal and local investigators raided several of the places.
Investigators charge that Hazrat Khalid Khan of Middletown, NY used local Pakistanis as fronts for a scheme to avoid up to $3 million in federal taxes by providing fake records on income and payrolls.
Two other men, Khurshed Iqbal and Rahman Zeb, were indicted with Khan in connection with two fried-chicken places, one in Chelsea and one at 344 Warren St. in Roxbury. They have yet to come to trial or offer a change of plea.
McCrevan spoke during a hearing on another New York Fried Chicken outlet, at 442 Blue Hill Ave. in Dorchester. The board, however, suspended the hearing on whether to revoke the eatery's food-serving license after the attorney for listed owner Syed Hakim Shah demanded proof that Khan was, in fact, a hidden owner in the operation. The board then similarly postponed hearings on four other fried-chicken places in Dorchester, Mattapan and Roxbury.
Before the hearing was suspended, Syed Hakim Shah's attorney, William Cintolo, started to make the case that McCrevan had no proof that Khan had anything to do with the 442 Blue Hill Ave. operation, because he had sold it all to Shah, and that there was no proof that Shah partook of any of the ill-gotten gains Khan agreed to plead guilty to taking. Cintolo also represented the owner of the now closed Hyde Park outlet; at the license revocation hearing for him, Cintolo did not deny Khan's involvement and suggested that client was simply a poor dupe.
Under hostile questioning from Cintolo - who at one point asked the veteran BPD detective if he knew what "hearsay" was - McCrevan acknowledged that Shah's name did not appear on any of the documents filed in the federal case against Khan or during Khan's plea hearing.
But McCrevan said he knows that Shah's name came up during the investigation, that the probe continues and that additional indictments could be forthcoming.
The federal documents in the Khan case list nine unindicted co-conspirators, seven of them unnamed. McCrevan added, "I find it interesting that Mr. Hazrat Khan agreed to plead guilty to crimes associated with the restaurant at 442 Blue Hill Avenue."
McCreavan said details on Khan's involvement with the New York Fried Chicken outlet on Blue Hill Avenue might be spelled out in documents held by the IRS, which he said he had no access to. An IRS investigator did attend the interrupted hearing, but did not testify.
Board Chairwoman Christine Pulgini then ruled that Cintolo, who also represented at least three of the other four owners scheduled for hearings today, had proved his case that the IRS records would be key to the board's determination whether the fried-chicken outlets' owners violated state and city rules against hiding the names of people with ownership stakes.
The four are also charged with violating rules requiring a listing of cash payments and an employee list. McCreavan said that on July 27 of this year, he conducted an inspection of the Blue Hill Avenue fried-chicken place and that Shah had neither a record of the day's cash receipts nor an employee list.
In addition to Shah's outlet, also facing possible license loss are New York Fried Chicken, 531 Columbia Rd. in Dorchester; New York Fried Chicken, 1198 Blue Hill Ave. in Mattapan; Crown Fried Chicken, 998 Blue Hill Ave. in Roxbury and Crown Fried Chicken and Pizza, 344 Warren St. in Roxbury. Khan allegedly also had a role in four other chicken and fast-food places in Brighton and Roxbury; the board has yet to hold hearings on their operations.
A clown calling himself or herself Pat Payaso managed to get certified for the November ballot for the four open at-large city councilor seats.
"Payaso" is Spanish for "clown." Too good to be true? Well, of course.
BNN's Seth McCoy reports Payaso is, depending on the day, either former mayoral candidate Kevin McCrea or his wife.
McCrea ran for mayor in 2009, losing to Tom Menino and Floon.
UPDATE: David Bernstein reports McCrea has legally changed his name to Pat Payaso, which is how he could file formal campaign reports with the state without worrying about being charged with, being deceptive or something.
Lacatena was arraigned on two counts of assault and battery and two counts of assault and battery with a dangerous weapon for allegedly kicking one of the victims, beating the other with a baton, and punching both of them, the Suffolk County District Attorney's office reports.
Rockett was charged with two counts of armed assault with intent to murder and three counts of assault and battery with a dangerous weapon for allegedly stabbing the two intended victims and additionally stabbing Lacatena in the process.
Both were ordered to stay away from and have no contact with the victims, a 29-year-old Revere woman and a 34-year-old Brighton woman who both suffered stab wounds, the DA's office says.
The DA's office provided this account:
Assistant District Attorney Kristina Kerwin of the DA’s Major Felony Bureau told the court that Lacatena and Rockett encountered the victims early Friday morning in the area of Washington Street downtown. Lacatena and Rockett were together, the two victims were friends, and the Revere victim was familiar with the defendants.
When the group went onto Spring Lane, an altercation broke out and was captured on video footage. Lacatena allegedly grabbed the Revere woman by the hand and engaged her in a physical altercation. Rockett allegedly stabbed this woman. Lacatena allegedly punched the Brighton woman, as well, and the two fell to the ground. At about this time, Rockett allegedly stabbed the Brighton woman - and, investigators believe, stabbed Lacatena, as well. Lacatena allegedly kicked the Revere woman. In the aftermath of the assault, as the victims attempted to leave, Lacatena struck the Brighton woman with a baton.
Boston Police and Boston EMS responded rapidly to the scene. The Revere woman was transported to Massachusetts General Hospital with life-threatening injuries and the Brighton woman was transported to Tufts Medical Center with a collapsed lung.
Boston Police located Lacatena and Rockett on Kingston Street. Rockett had a stab wound to the left wrist and Lacatena had a stab wound to the lower back. Rockett allegedly had a knife in her purse when arrested, and Lacatena allegedly had a knife and a baton.