Commonwealth of Massachusetts v. Nicholas Perez

Worcester, Massachusetts criminal defense lawyer presented the Defendant charged with possession with intent to distribue a class D substance (drug) and resisting arrest.





The defendant was convicted of one count of possession with intent to distribute a class D substance, G. L. c. 94C, § 32C (a.), and one count of resisting arrest, G. L. c. 268, § 32B. The defendant noticed a timely appeal from his convictions but, for reasons that need not presently concern us, that appeal did not proceed. In October 2023, following appointment of postconviction counsel, the defendant filed a motion for new trial, contending that he was deprived of effective assistance of counsel because certain statements used against him at trial were obtained in violation of his right to counsel under the Fifth Amendment to the United States Constitution, as interpreted by Miranda v. Arizona, 384 U.S. 436 (1966). That motion was denied and the defendant noticed the appeal now before us. Because it appears that the motion judge, who also was the trial judge, erred in applying a subjective rather than objective test to determine if the defendant's request for counsel was clear and unambiguous, we vacate the order denying the defendant's motion for a new trial and remand for an evidentiary hearing and reconsideration consistent with this memorandum and order.[1]...



Commonwealth v. Perez, 24-P-346 (Mass. App. Nov 19, 2024)

Order denying Defendant's motion for a new trial vacated and case remanded for a new trial.