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11-P-1160                                               Appeals Court

                   COMMONWEALTH    vs.   MIGUEL CRUZ.


                              No. 11-P-1160.

            Suffolk.       March 1, 2016. - August 18, 2016.

                Present:   Cypher, Cohen, & Neyman, JJ.


Controlled Substances. "School Zone" Statute. Practice,
     Criminal, New trial, Public trial, Assistance of counsel.
     Constitutional Law, Public trial, Assistance of counsel.
     Words, "Preschool."


     Indictments found and returned in the Superior Court
Department on March 6, 2008.

     The 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.


     James E. Methe for the defendant.
     Matthew P. Landry, Assistant Attorney General, for the
Commonwealth.


    CYPHER, J.     Following 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
                                                                     2


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.

     Background.     Taken 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.1    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.2    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

     1
       On appeal, the defendant does not contest the evidence
supporting his convictions of distributing and trafficking in
cocaine.
     2
       There was testimony at trial that the drug transactions
took place across the street from Bremen Street Park, a public
park adjacent to the YMCA. However, the Commonwealth presented
no evidence to establish the distance between the drug
transactions and the park.
                                                                    3


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 defendant's trial.

    Discussion.   1.   Sufficiency of the evidence.   The

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 the statute.

    "[I]n 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 public park or
    playground shall be punished" (emphasis supplied).
                                                                   4


G. L. c. 94C, § 32J, as amended by St. 1998, c. 194, § 146.3     The

statute does not define the term "preschool."   "When a statute

does not define its words we give them their usual and accepted

meanings," deriving such meanings "from sources presumably known

to the statute's enactors, such as their use in other legal

contexts and dictionary definitions."   Commonwealth v. Gopaul,

86 Mass. App. Ct. 685, 689 (2014), quoting from Commonwealth v.

Zone Book, Inc., 372 Mass. 366, 369 (1977).   In another legal

context, the term "preschool" appears in G. L. c. 15D, § 1A,

among the types of institutions that may constitute a "child

care center," for purposes of the department of early education

and care.4   Dictionaries define "preschool" as "a school for

children who are not old enough to attend kindergarten; a

nursery school," The American Heritage Dictionary 1432 (3d ed.


     3
       The school zone statute was subsequently amended to reduce
the radius of the school zone from 1,000 to 300 feet. See G. L.
c. 94C, § 32J, as amended by St. 2012, c. 192, § 30. Because
the defendant's convictions entered before the bill's effective
date, the change in the statue does not apply to this case, as
the change was prospective only. In any case, the drug
transactions occurred within 300 feet from the child care
facility.
     4
       The statutory provision governing the department of early
education and care defines a child care center as "a facility
operated on a regular basis whether known as a child nursery,
nursery school, kindergarten, child play school, progressive
school, child development center, or preschool . . . which
receives children not of common parentage under seven years of
age . . . for nonresidential custody and care during part or all
of the day separate from their parents." G. L. c. 15D, § 1A.
                                                                     5


1992); and as a "nursery school, kindergarten," Webster's Third

New International Dictionary 1792 (2002).5    Based on these

sources, we understand the usual and accepted meaning of

"preschool" to be a facility where children of younger than

elementary school age receive educational instruction.

     The Commonwealth did not specify at trial which of the

schools enumerated in the statute it sought to prove.6    We agree

with the defendant that the school zone statute applies to

public or private accredited preschools, as opposed to daycare

facilities, which are not among the institutions that fall

within the statutory zone of protection.     See Commonwealth v.

Gonzales, 33 Mass. App. Ct. at 729-730, quoting from

Commonwealth v. Domaingue, 397 Mass. 693, 697 (1986). ("The

language of the statute is unequivocal and, therefore, 'the

Legislature must be presumed to have intended to limit the

application of the statute to the [types of schools]

     5
       While Massachusetts appellate courts have not defined the
term "preschool" in a published opinion, we have had occasion to
consider the issue in Commonwealth v. Rivera, 70 Mass. App. Ct.
1106 (2007), an unpublished memorandum and order pursuant to our
rule 1:28 in which, relying upon dictionary definitions, a panel
of this court similarly held a preschool to be a "kindergarten
or nursery school for children of preschool age."
     6
       In trial testimony, the police officer who measured the
distance between the scene of drug sales to the East Boston YMCA
for the purpose of proving a school zone violation characterized
the YMCA facility as a "daycare center." The prosecutor, too,
referred to the center as a "daycare," and the executive
director of the East Boston YMCA agreed that the center was a
daycare facility.
                                                                   6


specifically enumerated'"); Commonwealth v. Burke, 44 Mass. App.

Ct. 76, 78 (1997) (holding, before statute was amended to

include preschools, that "a kindergarten, together with a

preschool, is not an elementary school" and, accordingly, is not

within protected zone).   Cf. Commonwealth v. Lawrence, 69 Mass.

App. Ct. 596, 600 (2007) ("The generic term 'school' encompasses

all forms of licensed or [ac]credited educational entities, and

would certainly include preschool and day care facilities").

     Nonetheless, viewed under the familiar Latimore standard,7

the evidence in this case sufficed to permit a jury reasonably

to find that the center qualified as a preschool within the

meaning of the school zone statute.   The executive director of

the East Boston YMCA testified that the center enrolled ninety-

three children of younger than elementary school age; that the

center was staffed by teachers with educational capabilities;

and that the center was accredited by a national association for

early childhood education.8   See Commonwealth v. Casale, 381

Mass. 167, 173 (1980) ("inferences drawn by the jury need only

be reasonable and possible and need not be necessary or

inescapable"); Commonwealth v. Laro, 68 Mass. App. Ct. 556, 560


     7
       See Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979).
     8
       The defendant does not dispute that the center is an
accredited facility, a requirement for private preschools under
the school zone statute.
                                                                   7


(2007) ("Although the jury were not required to find that the

[parochial institution] was an elementary school, it was far

from irrational for them to have done so").

    The defendant urges us to strictly construe the language of

the statute against the government and conclude that a child

care center does not qualify as a preschool for the purposes of

the school zone provisions.   However, the maxim that penal

statutes should be strictly construed "is a guide for resolving

ambiguity, rather than a rigid requirement that we interpret

each statute in the manner most favorable to defendants."      Simon

v. Solomon, 385 Mass. 91, 102-103 (1982).     Our determination

that the center qualifies as a preschool conforms with the

statutory provision that locates the term "preschool" under the

more general rubric of "child care center," as the center at

issue is undoubtedly a child care facility that, additionally,

provides educational instruction.   See G. L. c. 15D, § 1A.

Moreover, our interpretation comports with the broad purpose of

the school zone statute, which was enacted to "make every school

and surrounding community safe from the destructive impact of

drug trafficking and drug abuse."   Commonwealth v. Roucoulet,

413 Mass. 647, 651 n.7 (1992) (quoting from a communication by

Governor Michael Dukakis to the members of the Massachusetts

Legislature).   See Commonwealth v. Bell, 442 Mass. 118, 125

(2004) ("The broad purpose of the school zone statute, which is
                                                                      8


expressed in the statute's language and legislative history, as

well as in decisional law, should not be unnecessarily

limited").

     2.   Motion for a new trial.    The defendant brought a motion

for a new trial, raising claims of court room closure and

ineffective assistance of counsel.    The motion judge conducted

an evidentiary hearing on the defendant's claims and, in a

written memorandum of decision, denied the motion.     The

defendant reiterates the same arguments in his direct appeal

that he raised in his motion for a new trial.

     a.   Court room closure.   The defendant maintains that his

right to a public trial was violated when the court room was

closed to his relatives during jury empanelment.9    He argues that

the motion judge erred in failing to consider statements

favorable to the defendant in affidavits and in testimony at the

evidentiary hearing, and abused his discretion in denying the

defendant's motion for a new trail.



     9
       The defendant did not raise an objection to the issue of
court room closure during jury empanelment or at any point in
trial proceedings. Cf. Commonwealth v. Lopes, 89 Mass. App. Ct.
560 (2016). Many of our cases have held that where counsel
fails to timely object to closure of a court room, the
defendant's public trial claim is waived. See, e.g.,
Commonwealth v. Lavoie, 464 Mass. 83, 84-85 (2013); Commonwealth
v. LaChance, 469 Mass. 854, 856-857 (2014). Nevertheless,
where, as here, the motion judge gave the defendant's claim full
consideration at an evidentiary hearing, we need not address the
question of procedural waiver.
                                                                      9


    "A decision whether to allow a new trial 'is addressed to

the sound discretion of the [motion] judge.'"     Commonwealth v.

Cadet, 473 Mass. 173, 179 (2015), quoting from Commonwealth v.

Perkins, 450 Mass. 834, 845 (2008).     An appellate court accepts

a motion judge's findings of fact drawn from an evidentiary

hearing if supported by the record, see Commonwealth v. Walker,

443 Mass. 213, 224-225 (2005), and "defer[s] to that judge's

assessment of the credibility of the witnesses at the hearing."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

    In his motion for a new trial, the defendant claimed that

he was denied a public trial when the court room was closed to

members of his family during jury empanelment.     He supported his

motion with affidavits from his trial counsel and his relatives,

who averred that court officers prevented members of the

defendant's family from entering the court room while jury

empanelment for his trial was underway.     "A defendant claiming a

violation of his right to a public trial must show that the

court room was closed to the public."     Commonwealth v. Rogers,

459 Mass. 249, 263 (2011).   "Some affirmative act by the court

or one acting on its behalf is required."     Ibid., citing

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107-108 (2010).

    At the evidentiary hearing on the motion, the defendant's

trial counsel and brother-in-law testified for the defendant;

the trial judge, the prosecutor, an assistant trial court clerk,
                                                                     10


and a trial court officer testified for the Commonwealth.       At

the close of testimony, the motion judge asked both parties to

submit proposed findings of fact.    In a footnote in his

memorandum of decision, the motion judge indicated that he drew

from both parties' proposed findings to compose his findings of

fact.    He prefaced his findings with the statement that the

facts were "[b]ased upon the credible evidence introduced at the

evidentiary hearing"   "Such a statement leaves no room for

supplementation of the judge's findings of fact."    Commonwealth

v. Jones-Pannell, 472 Mass. 429, 438 (2015).

     Crediting testimony of the trial judge, court clerk, and

court officer, and portions of testimony from the defendant's

trial counsel and brother-in-law, the motion judge found that no

member of the public was prohibited from entering the court room

on the two days of jury empanelment.    He concluded that the

defendant had not presented sufficient credible evidence to show

that his family was prevented from entering the court room

during jury selection for his trial, and consequently, he denied

the defendant's motion for a new trial.

     Because a review of the motion hearing transcript supports

the judge's findings of fact, we determine that there was no

error.   The defendant's contention that the judge failed to

consider any of the affidavits and testimony purporting to show

that the court room was closed is to no avail.    As the motion
                                                                  11


judge did not incorporate the testimony to which the defendant

refers into his findings of fact, he implicitly did not credit

that testimony.   We defer to the motion judge's assessment of

credibility.   See Commonwealth v. Ridge, 455 Mass. 307, 325

(2009).   Likewise, the motion judge was not required to base his

decision on the affidavits, particularly after conducting an

evidentiary hearing.    See Commonwealth v. Stewart, 383 Mass.

253, 257 (1981) ("The decision on a motion for a new trial, as

well as the decision whether to decide the motion on the basis

of affidavits or to hear oral testimony, is left largely to the

sound discretion of the judge").   There was no abuse of

discretion in the denial of the defendant's motion for a new

trial on this ground.

     b.   Ineffective assistance of counsel.   The defendant

argues also that he was denied effective assistance of counsel

because his trial counsel failed to communicate a plea offer to

him, and as a result, he proceeded to trial and received a

harsher sentence than the one offered.10

     We note at the outset that this claim was expressly

withdrawn by the defendant's motion counsel at the close of the


     10
       In his motion for a new trial, the defendant based his
claim of ineffective assistance upon three allegations of error:
trial counsel (1) incorrectly advised him that drug addiction
was a defense; (2) failed to advise him of mandatory minimum
sentences; and (3) failed to inform him of any plea offers. The
defendant raises only the third claim of error on appeal.
                                                                  12


evidentiary hearing on the motion for a new trial.    Moreover,

the motion judge found as a matter of fact and of law that the

defendant presented no evidence to support his claim of

ineffective assistance of counsel.

    Nevertheless, the defendant presses his claim that a letter

written by trial counsel shows that the prosecutor made an offer

of a five-year sentence that trial counsel rejected without

consulting the defendant.   At the evidentiary hearing, both

trial counsel and the prosecutor testified that any plea offers

made before trial were advanced by trial counsel and flatly

rejected by the prosecutor.   The motion judge's finding that the

defendant presented no evidence to support his claim was not

clearly erroneous, and therefore, the defendant was not deprived

of a substantial ground of defense.     See Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).    As we concluded in the

section addressing court room closure, the defendant's motion

for a new trial was properly denied.

    For the above reasons, the judgments are affirmed, and the

order denying the defendant's motion for a new trial is

affirmed.

                                      So ordered.
