apparent claim in Massachusetts

2025That is to say, the nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose." Seas Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838, 848 (2004).

2019That is to say, the nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose." Sea Pines III, 61 Mass. App. Ct. at 848 .

2025Contrast Commonwealth v. Sweeting-Bailey, 488 Mass. 741 , 749 n.8 (2021) (furtive behavior where passenger took "a bladed stance," appeared to be preparing "to attack [one officer]," and had "a closed, clenched fist"); Commonwealth v. Resende, 474 Mass. 455, 459 (2016) (reasonable suspicion defendant was illegally carrying gun where he kept his right hand in his pocket and held it close to his body at waistband area, turned his body away from officer, and made multiple "retention checks"). 8 Walczak testified that the juvenile's hands were sweaty, and while he did not suggest the juvenile was

2013See Commonwealth v. Lockley, supra at 161 ; Commonwealth v. Zimmerman, 441 Mass. 146, 152 (2004). 7 As an initial matter, we must address whether this apparent error is properly before us, and, if so, what the appropriate standard of review is.

2013See Commonwealth v. Lockley, supra at 161 ; Commonwealth v. Zimmerman, 441 Mass. 146, 152 (2004). 7 As an initial matter, we must address whether this apparent error is properly before us, and, if so, what the appropriate standard of review is.

2009Perhaps for this reason, in another case in which a similar claim of error was not raised until after sentencing, Commonwealth v. Shuman, 17 Mass. App. Ct. 441, 451-452 (1984), we concluded that, despite the language ordinarily requiring dismissal of the lesser included offense, the more appropriate action would be to allow the trial judge to decide which charge to dismiss.

2008Nonetheless, the defendant admitted to Detective Donovan that he continued to view child pornography on the Internet, an apparent violation of his probation. “[A] ‘person of reasonable caution’ would take into account predilections revealed by past crimes or convictions as part of the inquiry into probable cause.” United States v. Wagers, 452 F.3d 534, 541 (6th Cir.), cert. denied, 127 S. Ct. 596 (2006).

2000If however, the plaintiff had established uninterrupted, continuous use of the ways for a twenty-year period, “to acquire a public way by prescription it must appear, as in the case of a private way, that the use was adverse to the owner, that is, under an apparent claim of right.” Gower v. Town of Saugus, 315 Mass. 677, 681 (1944).

1997In this case, the plaintiff Callahan has complied with the apparent requirement of filing a formal protest with the Attorney General’s Division before seeking judicial relief, see Petricca Construction Co. v. Commonwealth, 37 Mass.App.Ct. 392, 394 (1994), and the Attorney General’s Division rendered a decision in favor of Callahan on April 14. 1997.

1996For that position they rely on Tolson v. Shemligian, 24 Mass. App. Ct. 969, 971-972 (1987), in which we indeed held that, if a defendant removes a case to the Superior Court under § 104 and the case is thereafter remanded to the District Court, the defendant cannot prevent the retransfer to the Superior Court that would normally apply to the Superior Court cases remanded under § 102C.

1982The defendant’s only apparent defense to murder in the first degree was intoxication, but “[i]ntoxication is not a mitigating factor in the case of murder with extreme atrocity or cruelty.” Commonwealth v. Podlaski, 377 Mass. 339, 347 (1979).