COMMONWEALTH vs. GABRIEL SOLOMON.

COMMONWEALTH vs. GABRIEL SOLOMON.

5 Mass. App. Ct. 90

January 17, 1977 - February 8, 1977

Suffolk County

Present: HALE, C.J., KEVILLE, & GRANT, JJ.

This court declined to answer a question reported under G. L. c. 278, Section 30A, where the question was not one of importance to the general public, was not one of substantial significance which had not previously been considered by the United States Supreme Court or by either of the appellate courts of the Commonwealth, and was not one in which a ruling favorable to the defendant would result in avoiding a long or otherwise burdensome trial. [92]

COMPLAINTS received and sworn to in the Municipal Court of the City of Boston on February 28, 1974.

Upon appeal to the Superior Court questions of law were reported by Morrissey, J., a judge of the Municipal Court of the City of Boston sitting under statutory authority.

William F. York for the defendant.

James E. Foley, Assistant District Attorney, for the Commonwealth.

GRANT, J. On June 18, 1974, the defendant was convicted in the Municipal Court of the City of Boston on two complaints, each alleging the commission of an offence under the gaming laws on February 27, 1974. The defendant's appeals to the Superior Court were entered there on June 24, 1974. On September 20, 1974, the defendant secured the court's permission for the late filing of a motion

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to suppress evidence in the form of gambling paraphernalia which had been seized in the defendant's presence on February 27, 1974, by an officer of the vice control unit of the Boston police pursuant to a search warrant which had issued that day out of the Municipal Court. The motion asserts, among other things, that "[t]he affidavit in support of the application for the search warrant . . . does not contain sufficient facts and circumstances to justify a finding of probable cause."

On September 23, 1974, a judge of the Superior Court, in the presence of counsel for the defendant, ordered that a pretrial conference be held on October 11, 1974. Neither docket reflects any further activity on either complaint until June 2, 1975. On that date there was granted the first of nine separate continuances extending until April 20, 1976. Some of the continuances expired before others were granted; three of the continuances were either requested or agreed to by the defendant; six of them are unexplained, but none of the six appears to have been granted over the defendant's objection. It does not appear that any hearing as such was ever held on the motion.

On April 20, 1976, a Municipal Court judge, sitting in the Superior Court under statutory authority, reported four questions of law which he regarded as "so important and doubtful as to require the decision of the Appeals Court . . . before trial." G. L. c. 278, Section 30A, inserted by St. 1954, c. 528. Commonwealth v. A Juvenile (No. 2), 370 Mass. 677 , 678 (1976). Commonwealth v. Graziano, 371 Mass. 596 , 597 (1976). Commonwealth v. Cowan, 4 Mass. App. Ct. 796 (1976). Three of the questions reported are nowhere referred to in the defendant's brief, and we join the defendant in ignoring them. Commonwealth v. Logan, 367 Mass. 655 , 656, 657 (1975). The remaining question is, "Whether the affidavit in support of the application for [s]earch [w]arrant contained sufficient facts and circumstances to justify a finding of probable cause for the issuance of a search warrant in light of the constitutional criteria set forth in the cases of Spinelli v. U.S., 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964)."

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We have examined the affidavit in question and, in the exercise of our discretion (Commonwealth v. Benjamin, 358 Mass. 672 , 673, n. 1 [1971], S. C. 3 Mass. App. Ct. 604 [1975]), have concluded that it would not be appropriate for us to answer the remaining question. See and compare Commonwealth v. Henry's Drywall Co. Inc. 362 Mass. 552 , 554, 556 (1972), S. C. 366 Mass. 539 (1974). Except in the broadest sense, that question is not one of importance to the general public. Contrast Commonwealth v. Haddad, 364 Mass. 795 , 797 (1974). Nor is it one of "substantial significance" (Commonwealth v. Benjamin, 358 Mass. at 673, n. 1) which has not previously been considered by the Supreme Court of the United States or by either of the appellate courts of the Commonwealth. See and contrast Commonwealth v. Rossetti, 349 Mass. 626 (1965); Commonwealth v. Monosson, 351 Mass. 327 (1966); Commonwealth v. Moran, 353 Mass. 166 (1967); Commonwealth v. Cuddy, 353 Mass. 305 (1967); Commonwealth v. Snow, 363 Mass. 778 (1973).

The present does not appear to be an instance in which a ruling favorable to the defendant would result in avoiding a long or otherwise burdensome trial. See Commonwealth v. Benjamin, 358 Mass. at 673-675; Commonwealth v. Horan, 360 Mass. 739 , 742 (1972); Commonwealth v. Henry's Drywall Co. Inc. 362 Mass. at 557; Commonwealth v. Cavanaugh, 366 Mass. 277 , 279 (1974). "The record discloses no reason for any of the . . . [nine] continuances" (Commonwealth v. Henry's Drywall Co. Inc. 362 Mass. at 557), and we must keep in mind that "interlocutory . . . reports should not be permitted to become additional causes of the delays in criminal trials which are already too prevalent." Commonwealth v. Cavanaugh, 366 Mass. at 279.

The entry on both complaints will be

Report discharged.