Opinion
No. 12–P–643.
2013-03-12
COMMONWEALTH v. Stephen M. PATTERSON.
By the Court (CYPHER, KANTROWITZ, FECTEAU JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals, pursuant to G.L.c. 231, § 109, from a decision of the Appellate Division of the District Court, which he claims erroneously affirmed the District Court's finding that he was “responsible” on a civil motor vehicle infraction because the show cause hearing before the clerk-magistrate was improperly continued over the defendant's objection. We affirm.
First, our review, like that of the Appellate Division, is limited to questions of law arising from the de novo judicial hearing, not the prior clerk-magistrate's hearing. See G.L.c. 90C, § 3( A )(5).
We see no difference of significance between this matter and that presented by the case of Reading v. Murray, in which the Supreme Judicial Court held that a de novo trial before a justice of the District Court permitted by G.L.c. 90C, § 3, renders immaterial all “ ‘errors and irregularities in the proceedings' below.” Reading v. Murray, 405 Mass. 415, 418 (1989), quoting from Foley v. Lowell Div. of the Dist. Ct. Dept., 398 Mass. 800, 803–804 (1986).
Even if this claim of error by the clerk-magistrate was properly before us, it has not been shown that the clerk-magistrate is without authority to continue a hearing. A clerk-magistrate may “grant such continuances as are agreed upon by all parties to any proceeding and as may be allowed by rule of court.” G.L.c. 221, § 62C( a ), inserted by St.1978, c. 478, § 250. Rule VII(b)(1) of the Trial Court Rules, Uniform Rule on Civil Motor Vehicle Infractions (1986), provides: “Hearings on civil motor vehicle infractions shall not be delayed or postponed except for good and sufficient reason.” Indeed, the hearing was continued twice at the defendant's request prior to the request by the Commonwealth for the continuance about which the defendant complains.
Decision and order of Appellate Division affirmed.