8 Mass. App. Ct. 948

December 27, 1979

The defendant appeals from the denial by a single justice of this court of a stay of execution of sentence pending appeal (G. L. c. 279, Section 4, as amended through St. 1972, c. 740, Section 17) from his conviction under G. L. c. 269, Section 10.

We have reviewed the record which the single justice had before him, and we find no abuse of discretion in his denial of the stay of execution, which was predicated in part upon his finding that there exists a possibility of "further acts of criminality during the pendency of the appeal." Commonwealth v. Levin, 7 Mass. App. Ct. 501, 505 (1979). See Commonwealth v. Allen, 378 Mass. 489, 498 (1979). As this court stated in Commonwealth v. Levin, supra at 505-506, "when a denial by a single justice of a stay of execution pending appeal is predicated, in whole or in part, on reasons of security, the denial should not be disturbed on appeal unless the defendant can demonstrate abuse of discretion." Because questions relating to security "involve determinations of fact and the exercise of sound, practical judgment . . . it is frequently said that the exercise of discretion by the judge will be upheld unless his action is one `that no conscientious judge, acting intelligently, could honestly have taken.'" Commonwealth v. Levin, supra at 505, quoting from Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920). In the record before us we find ample support for the single justice's decision. Therefore, we need not decide whether the defendant has demonstrated "some reasonable possibility of a successful decision in the appeal." Commonwealth v. Allen, supra at 498, quoting from Commonwealth v. Levin, supra at 505.

Order denying stay of execution affirmed.