6 Mass. App. Ct. 855

March 14, 1978

The defendant was convicted of armed robbery. We affirmed the conviction on appeal, 3 Mass. App. Ct. 560 (1975). There was no error in the denial of the defendant's motion for a new trial. All matters raised in that motion were raised or could have been raised at trial (as defense counsel acknowledged at the hearing on the motion) or upon the ensuing appellate review. "[A] motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law which were actually raised at the trial and already reviewed by an appellate court or which could have been raised at the trial and in appellate review after trial but which were not so raised." Commonwealth v. McLaughlin, 364 Mass. 211 , 229 (1973), and cases cited. The judge's consideration of the defendant's detailed affidavit in support of the motion and the judge's inquiries of defense counsel based thereon afforded the defendant an adequate opportunity to be heard. See Commonwealth v. Coggins, 324 Mass. 552 , 557, cert. denied, 338 U.S. 881 (1949). The defendant's complaint that he was handicapped upon appeal from his conviction because of the unavailability of a transcript is belied by the record which makes it clear that the transcript was available more than two months prior to the entry of the appeal in this court.

Order denying motion for new trial affirmed.


6 Mass. App. Ct. 855

March 16, 1978

1. As complaint No. 75-3271 is framed in essentially the same terms as the indictment in Commonwealth v. Armenia, 4 Mass. App. Ct. 33 , 38 (1976), the Commonwealth is similarly confined in its proof to establish a violation of G. L. c. 266, Section 49. Accordingly, on this record, it was error for the judge to deny the defendant's motion for a directed

Page 856

verdict of not guilty on that complaint. Contrast Commonwealth v. Jones, 355 Mass. 170 , 176-177 (1969). The only evidence presented by the Commonwealth to establish the essential element of intent to use was that the defendant was a passenger in a vehicle that "would slow down as it approached driveways [of houses] headed in a westerly direction on Route 30." The vehicle stopped once only briefly near a drug store, and the passengers did not leave the vehicle at any time during the period it was under observation. Contrast Cortellesso v. Commonwealth, 354 Mass. 514 , 515-516 (1968). 2. A study of the charge as a whole (Commonwealth v. Pinnick, 354 Mass. 13 , 15 [1968]) reveals that the judge did not exceed the limitations which the law places on his discretion in phrasing his instruction to the jury with regard to the offense of using a motor vehicle without authority. See Commonwealth v. Perry, 3 Mass. App. Ct. 308 , 310-312 (1975). See also Commonwealth v. Binkiewicz, 342 Mass. 740 , 749-753 (1961). But see Commonwealth v. Therrien, 371 Mass. 203 , 208-209 (1976). 3. The defendant's remaining assignments of error, still relevant in light of our disposition of this case, have been considered and we find them lacking in merit. The judgment on complaint No. 75-3271 is reversed, the verdict on that complaint is set aside, and judgment is to be entered for the defendant. The judgment on complaint No. 75-3272 is affirmed.

So ordered.