6 Mass. App. Ct. 873

April 26, 1978

1. It was not error to deny the defendant's motion to suppress the victim's in-court and out-of-court identifications of the defendant. In the circumstances of this case the "bring-back" procedure employed was "justified by the need for efficient investigation in the immediate aftermath of crime." Commonwealth v. Barnett, 371 Mass. 87 , 92 (1976), cert. denied, 429 U.S. 1049 (1977). See also Commonwealth v. Bumpus, 354 Mass. 494 , 497-502 (1968), cert. denied, 393 U.S. 1034 (1969); Commonwealth v. Denault, 362 Mass. 564 , 566-567 (1972); Commonwealth v. Dickerson, 372 Mass. 783 , 789-791 (1977); Commonwealth v. Lifsey, 2 Mass. App. Ct. 835 (1974); Commonwealth v. Farmer, 5 Mass. App. Ct. 871 , 871-872 (1977). The defendant was apprehended a short distance from the scene of the crime with the stolen television set, and in the "totality of the circumstances" the confrontation was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" that the defendant was denied due process of law. Stovall v. Denno, 388 U.S. 293, 301-302 (1967). Compare Manson v. Brathwaite, 432 U.S. 98 (1977); Commonwealth v. Gordon, ante 230 (1978). 2. There was no need to prove the value of the television set as larceny from a building is a felony itself without regard to the value of the stolen property. G. L. c. 266, Section 20. Commonwealth v. Ronchetti, 333 Mass. 78 , 82 (1955). 3. The evidence against the defendant was overwhelming, and the denial of the defendant's motions for directed verdicts was the only action open to the judge.

Judgments affirmed.

Home FERMAN GONZALEZ vs. POLICE COMMISSIONER OF BOSTON (and a companion case [Note 1]).

6 Mass. App. Ct. 873

April 27, 1978

1. There was nothing in G. L. c. 31, Section 20D (as amended through St. 1971, c. 182), or in any other statute, which required the commissioner to give either plaintiff a hearing before terminating his status as a probationary patrolman. It is settled that neither plaintiff was entitled to such a hearing under the due process clause of the Fourteenth Amendment of the Constitution of the United States. Stetson v. Selectmen of Carlisle, 369 Mass. 755 , 764-765 n.14 (1976). We note that it does not appear from the pleadings or the evidence that either plaintiff has ever requested a posttermination hearing at which he could challenge the substantial truth of the facts asserted or the reasons given by the commissioner for terminating him. See Codd v. Velger, 429 U.S. 624, 627-628 (1977). 2. We need not consider the plaintiffs' contention that the commissioner's letters of termination failed to satisfy the "particularity" requirement of the second paragraph of G. L. c. 31, Section 20D (as appearing in St. 1968, c. 506), because no such contention appears to have been raised below. Milton

Page 874

v. Civil Serv. Commn., 365 Mass. 368 , 379 (1974). Kelsey v. Panarelli, 5 Mass. App. Ct. 480 , 482 (1977). If we were to consider the contention, we would conclude that it lacks merit with respect to either letter. See Sullivan v. Municipal Court of the Roxbury Dist., 322 Mass. 566 , 577 (1948); Thibeault v. New Bedford, 342 Mass. 552 , 558 (1961). 3. No other question has been argued.

Judgments affirmed.


[Note 1] Francis X. Aherne vs. Police Commissioner of Boston.