5 Mass. App. Ct. 827

May 24, 1977

The judge did not err in denying the defendant's motions for directed verdicts presented at the close of the Commonwealth's case. See Commonwealth v. Kelley, 370 Mass. 147 , 149-151 (1976). It is true that no eyewitness made an in-court identification of the defendant as one of the individuals who had been present during the actual commission of the robberies in the store, but there was evidence from which the jury could have found that a total of six persons had been present and actually participated in the robberies; that the young man who had smashed the window of the cashier's office, entered the office and opened the cash drawer had been wearing a "brown winter coat" and had "[stuffed] . . . money in his pockets"; that the defendant was one of the six persons who had emerged and fled from the getaway car when it was trapped by a police cruiser which had continuously pursued the car from the side street immediately adjacent to the store; that when captured by the police following a brief pursuit from the getaway car, the defendant was wearing a "brown . . . jacket . . . and in both pockets [were] stuffed large amounts of bills"; that the driver of the getaway car and the three other occupants thereof who were also captured (the sixth occupant escaped) had all participated in the actual commission of the robberies in the store; and that the defendant, when arrested, had given a false name and falsely stated his age to be such that he would be charged as a juvenile. The disposition of the motions was governed by such cases as Commonwealth v. Breen, 357 Mass. 441 , 447-448 (1970), and Commonwealth v. Drew, 4 Mass. App. Ct. 30 , 31, 32 (1976), rather than by such cases as Commonwealth v. Perry, 357 Mass. 149 , 151 (1970), and Commonwealth v. Murphy, 1 Mass. App. Ct. 71 , 76-77 (1973).

Judgments affirmed.


5 Mass. App. Ct. 827

May 25, 1977

The defendant planning board of the town of Winchester (board) appeals from a declaratory judgment entered in the Superior Court in favor of a landowner, the plaintiff McDavitt. We conclude that the judge did not abuse her discretion in granting declaratory relief to the plaintiff. See Smith v. Building Commr. of Brookline, 367 Mass. 765 , 768 (1975). While the board has not yet rescinded its approval of the subdivision of lots 1-9 in McDavitt's development so as to entitle him to appeal under c. 41, Section 81BB, it has threatened to do so. Should McDavitt fail to extend Thornberry Road

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over a portion of parcel A as demanded by the board, that would result in a sufficient threat to McDavitt's property interest to warrant his resort to declaratory relief. See Woods v. Newton, 349 Mass. 373 , 376 (1965); Belfer v. Building Commr. of Boston, 363 Mass. 439 , 441-442 (1973); contrast Picard v. Worcester, 338 Mass. 644 , 648 (1959). This is true even though the relief granted would not terminate the controversy between the parties. See Belfer, supra, at 442; see also Ciszewski v. Industrial Acc. Bd. 367 Mass. 135 , 139 (1975); Smith, supra, at 768. In our earlier opinion in this case, we concluded that lots 1-9 and parcel A were separate subdivisions and that it was permissible for the board to require the construction of the Thornberry Road extension as a prerequisite to approval by the board of the subdivision of parcel A. McDavitt v. Planning Bd. of Winchester, 2 Mass. App. Ct. 806 (1974). Nevertheless, and as stated in the declaratory judgment, the board is not foreclosed from seeking to rescind its approval of the subdivision of lots 1-9 by resorting to the remedy set out in G. L. c. 41, Section 81W, as amended through St. 1973, c. 605. Bigham v. Planning Bd. of No. Reading, 362 Mass. 860 (1972).

Judgment affirmed.