Home JAMES PRESTON vs. COMMONWEALTH.

391 Mass. 1017

May 7, 1984

The case was submitted on briefs.

Willie J. Davis for the plaintiff.

Kevin M. Burke, District Attorney, & Robert N. Weiner, Assistant District Attorney, for the Commonwealth.

The petitioner appeals a single justice's denial of his petition for review of bail. We affirm.

In January, 1983, the petitioner was arrested and charged with murder. Bail was set in the amount of $1,000,000. The petitioner's motion for reduction of bail was denied. The petitioner was subsequently indicted for murder.

In September, 1983, the petitioner was tried. The jury returned a verdict of murder in the second degree. The trial judge ordered a new trial, pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), and gave no reasons therefor. The Commonwealth's appeal of that order is now pending before the Appeals Court.

Upon ordering a new trial, the judge denied the petitioner's oral motion for a reduction of bail. After the Commonwealth filed its notice of appeal the petitioner again moved for a reduction of bail. A judge of the Superior Court (not the trial judge) denied the motion. The petitioner then petitioned the county court for a review of bail. The single justice denied the petition.

Our review of the single justice's decision is limited to correcting errors of law and abuse of discretion. Commesso v. Commonwealth, 369 Mass. 368 , 376 (1975). The petitioner is charged with a serious crime punishable by life imprisonment. He has an extensive criminal record, including convictions for illegal drug distribution; he has a history of default; he has attempted to conceal his identity. See G. L. c. 276, Section 58. Even if we assume that the Commonwealth's appeal of the order for a new trial, which will have the effect of prolonging the petitioner's prejudgment incarceration, amounts to a change of circumstances warranting a reconsideration of bail, he was not necessarily entitled to a reduction. There was no error of law or abuse of discretion.

Judgment affirmed.

Home TRUSTEES OF MILTON ACADEMY vs. BOARD OF ASSESSORS OF MILTON.

391 Mass. 1017

May 7, 1984

Robert D. O'Leary, Town Counsel, for the Board of Assessors of Milton.

Thomas M. Spera (Anthony J. Luppino with him) for the taxpayer.

The board of assessors (assessors) appeals from a decision of the Appellate Tax Board (board) exempting from taxation certain real estate owned by the trustees of Milton Academy (school) and used as faculty residences. The board concluded that, pursuant to G. L. c. 59, Section 5, Third (e), inserted by St. 1974, c. 811, Section 2, eight faculty residences assessed for fiscal year 1981, and nine faculty residences assessed for fiscal year 1982, were exempt from local taxation as property that was "part of or contiguous to real estate

Page 1018

which is the principal location of [the school]." The assessors' main contention is that the board erred in determining the "principal location" of the school, because the board should have limited the principal location to a unified area not traversed by public ways and should not have included disjoined parcels. The assessors argue further that a determination of the school's "principal location" as including virtually all the school's real estate does an injustice to the legislative intent underlying G. L. c. 59, Section 5, Third (e), and renders the word "principal" meaningless.

The determination of the "principal location" of an educational institution is essentially a question of fact in the resolution of which the board has a measure of discretion. Trustees of Boston Univ. v. Assessors of Brookline, 11 Mass. App. Ct. 325 , 327 (1981). The term "principal location" is undefined in G. L. c. 59, Section 5, Third (e), "undoubtedly because of the practical difficulties inherent in fashioning a definition which could be uniformly applied to the Commonwealth's numerous educational institutions." Id.

The board decided these appeals on a statement of agreed facts, testimony, exhibits, and a view of the premises by a hearing member. The board's decision as to the "principal location" of the school was not erroneous under the relevant standard of review. There is no requirement that a school's "principal location" cannot be traversed by a public way, id. at 330-331, or that it must consist of one integral parcel. The board's findings were not inconsistent, and its conclusions were warranted by the evidence. See Assessors of Hamilton v. Iron Rail Fund of Girls Clubs of Am., Inc., 367 Mass. 301 , 302 (1975). Thus the board was justified in concluding that the faculty residences were properly exempted from taxation as they were "part of or contiguous to . . . the principal location of [the school]." G. L. c. 59, Section 5, Third (e).

Decision of the Appellate Tax Board affirmed.