Grasso
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order revoking his probation based on his claims that there was insufficient evidence to support the revocation and that the condition prohibiting him from having contact with children was unconstitutionally vague. We affirm.
1. Evidence supporting the revocation. The defendant claims he was denied due process because the judge revoked his probation due to his failure to register as a sex offender within forty-eight hours of establishing a temporary residence. See Commonwealth v. Ruiz, 453 Mass. 474, 478-479 (2009). This requirement was special condition number 13 in the probation contract. One of the three violations enumerated in the surrender notice is similar to special condition number 13, but it instead alleges only that the defendant failed to register his address with the local police. However, the judge did not base his revocation decision on a failure to report within forty-eight hours. The judge instead found the defendant complied with special condition number 13 when, after his release from prison, the defendant reported to the Attleboro police department. Relative to the registration requirement, the defendant violated his probation because he failed to notify the North Attleborough police when he moved to that town. The defendant was notified of this responsibility, and it is set forth in G. L. c. 6, § 178E(a). Because one of the alleged violations in the surrender notice was the defendant's failure to obey local, State, and Federal laws, and his failure to report his change of address violated § 178E(a), the judge's decision to revoke his probation on that ground was proper and fully supported by the evidence.
There is no merit to the defendant's claims that there was insufficient evidence to show he knew of the statutory registration requirement or that he violated that requirement. The Commonwealth presented evidence of the statutory requirement, the defendant's knowledge of it, the defendant being reminded of it, and the defendant having moved from Attleboro to North Attleborough without registering with the latter. The judge was not required to credit the defendant's claim that a police officer told him she would notify the North Attleborough police of his new residence there.
To the extent there existed any procedural or substantive problems with the defendant's probation revocation for his failure to notify North Attleborough police of his change in address, the defendant's probation properly was revoked for the independent reason of his contact with a child under the age of sixteen. The defendant does not challenge the sufficiency of this ground from an evidentiary perspective. In any event, there was an abundance of evidence that the defendant had contact with a six year old child, and was living in a motel room with the child and her mother. This was a clear violation of special condition number 16 of his probation contract, and the judge properly found so.
2. Special condition number 16. The defendant claims that special condition number 16, which requires him to avoid 'social, recreational, or personal activities involving contact with children under 16 years,' is unconstitutionally vague. We disagree. Although due process requires that a probationer receive fair warning of conduct that may result in a revocation, that warning 'need not provide the fullest warning imaginable.' Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006). Special condition number 16 was imposed after the defendant had been convicted of multiple sex offenses involving children. Because of this, the prohibition against having any 'social, recreational, or personal activities involving contact with children under 16 years,' would be reasonably understood by this defendant as a requirement that he not have any such contact with children. See ibid. Indeed, in his own testimony, the defendant admitted that he knew having unsupervised contact with children would be a violation of his probation. The special condition was not unconstitutionally vague. See ibid. ('The notice requirement can be satisfied by 'an imprecise but comprehensible normative standard so that [people] of common intelligence will know its meaning' '), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).
Defense counsel makes this claim in accordance with the process prescribed in Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).
Order revoking probation affirmed.
By the Court (Grasso, Meade & Rubin, JJ.),