Home COMMONWEALTH vs. RICHARD A. MISCI & others.

358 Mass. 804

October 30, 1970

Each of the three defendants filed a motion to suppress evidence seized by State police in execution of a search warrant. The trial judge held hearings on the motions, the only evidence before him being the affidavit in support of the application for the search warrant and the warrant itself. He reported the matter of the motions to suppress for a determination of the sufficiency of the affidavit. The defendants in their sole argument having merit alleged that the facts which it sets forth are not sufficient to support the required conclusion that the objects of the search were probably in the described premises at the time the warrant was issued. A majority of the court is, however, of opinion that the affidavit is sufficiently precise to render it adequate. While the affidavit, dated August 12, 1969, referred to some information received by the affiant about five months earlier, it also recited information received "this past week," which we interpret as referring to the time of the events reported, and a house is identified as being occupied by the defendant Misci where, in the presence of an informer, "at this time" (within a week) the defendant Misci allegedly had narcotics in his possession and solicited the informer for a purchase. Sgro v. United States, 287 U.S. 206, 210. United States v. Ventresca, 380 U.S. 102, 108. Schoeneman v. United States, 317 F.2d 173, 177 (Ct. App. D. C.). See Commonwealth v. Moran, 353 Mass. 166 ; Rosencranz v. United States, 356 F. 2d 310 (1st Cir.). The defendants' motions to suppress should be denied.

So ordered.

Home ADOLPH J. WINN & another vs. BOARD OF APPEALS OF SAUGUS & another.

358 Mass. 804

October 30, 1970

Patrick J. Rossetti and his wife owned lot A-159 on the east side of Essex Street, Saugus, with an area of 12,100 square feet. On it was a two family house. The lot to the south (A-160) contained 11,550 square feet. On it were a 100 year old two family house and an attached store. The lot (A-158) to the north, originally 12,100 square feet, had been divided into two lots, one containing about 8,100 square feet and the other about 4,000 square feet. Farrington Avenue comes to a dead end on the east side of lot A-159. The lots on Farrington Avenue in general each had an area of between 2,500 and 3,150 square feet. Essex Street runs north and south. Farrington Avenue runs east and west. On the west side of Essex Street (opposite lots A-158, A-159, and A-160) the lots vary from 17,000 to 33,905 square feet. The zoning by-law required an area of not less than 10,000 square feet for a two family house in this district. The board of appeals granted Rossetti a variance to divide lot A-159 into two lots. The westerly lot on Essex Street

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was to be 7,000 square feet and was to contain the present dwelling. The 5,000 square feet with frontage on Farrington Avenue was to contain a large one story house for Rossetti (who had recently suffered a heart attack), his wife, and his ten minor children. In this suit by the Winns, who owned five adjoining lots on Farrington Avenue, the trial judge correctly annulled the variance on the ground that there were no conditions especially affecting lot A-159 which constituted substantial hardship. G. L. c. 40A, Section 15 (as amended through St. 1958, c. 381). The frontage on two streets was unique to lot A-159, but double frontage constituted an asset not a hardship. Rossetti's personal health and family circumstances are not hardships affecting lot A-159. See Wolfson v. Sun Oil Co. 357 Mass. 87 , 90. See also McNeely v. Board of Appeal of Boston, ante, 94, 100-101.

Final decree affirmed.