450 Mass. 1010

December 6, 2007

Heidi Erickson was charged in the Central Division of the Boston Municipal Court Department with six counts of animal cruelty. G. L. c. 272, § 77. While those charges were pending, a judge in that court ordered that six animals (four living and two dead), which had been seized from Erickson's apartment and were in the custody of the city of Boston (city), be returned to her. The city sought relief from the judge's order under G. L. c. 211, § 3, in the county court. After Erickson was convicted, the city withdrew its challenge to the return of the living animals and proceeded only as to the deceased ones. A single justice denied the city's petition for relief, on the condition that Erickson demonstrate to the judge "that she has made arrangements for [t]he prompt and proper disposal [of the deceased animals], which disposal also is in compliance with health codes." Erickson appeals, arguing that this condition interferes with her property rights and other interests by requiring her to discard or destroy the deceased animals. However, we interpret the condition to mean not that she must discard or destroy the animals, but that whatever she does with them, including keeping them, she must comply with all applicable health codes and demonstrate to the satisfaction of the judge that she will do so. She is under no obligation to forfeit her property. As such, the single justice did not err or abuse his discretion. [Note 1]

Judgment affirmed.

Heidi Erickson, pro se.

Elizabeth L. Bostwick, Assistant Corporation Counsel, for the plaintiff.


[Note 1] Given our disposition of this matter, we do not address Erickson's argument that the city was an improper party to challenge the judge's order that the animals in its custody be returned.


450 Mass. 1010

December 6, 2007

Edward W. Cousino, III, appeals from a judgment of a single justice of this

Page 1011

court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.

Cousino is charged with rape of a child and other crimes. Pursuant to the protocol we announced in Commonwealth v. Dwyer, 448 Mass. 122 , 139-147 (2006), Cousino moved that a summons issue for production of certain counselling and therapy records held by a third party. The judge determined that Cousino had not made the threshold showing required by that protocol, id. at 147-148 (Appendix) (concerning affidavit, hearing, and findings under Commonwealth v. Lampron, 441 Mass. 265 [2004]), and denied Cousino's motion. Cousino's G. L. c. 211, § 3, petition followed.

The case is now before us on Cousino's memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Cousino to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." Cousino has not done so. As we have explained, relief from the improper denial of a summons under the Dwyer protocol can be obtained in the ordinary appellate process. Rodriguez v. Commonwealth, 449 Mass. 1029 , 1030 (2007). Cousino has not shown otherwise. The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Joseph A. Hanofee for the plaintiff.