Brian_Dalton
New Member
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY, DISTRICT COURT
EAST BOSTON DISTRICT COURT DOCKET# 0805RO259
MARIA LAMONICA
v.
BRIAN DALTON SR.
DEFENDANT'S MOTION FOR NEW HEARING
Now comes the Defendant, Brian Dalton Sr., who moves the honorable court to grant a new hearing for the permenant extention of a 209A Restraining and Abuse Prevention Order that was granted to Maria LaMonica on the 21st day August 2008, against the said Defendant. Defendant requests new hearing on the basis of procedural mistakes by the Winthrop Police Department's Officer DeLeo in serving said Defendant with Emergency Restraining and Abuse Prevention Order
on the 20th day of August 2008.
In support therefor, please find attached the Defendants Memorandum of Law as well as the Affidavit of Brian K. Dalton Sr.
Respectfully submitted by Defendant,
Brian K. Dalton Sr.
14 Nelson Ave.
Tewksbury, MA 01876
(978) 394-7886
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY, DISTRICT COURT
EAST BOSTON DISTRICT COURT DOCKET# 0805RO259
MARIA LAMONICA
v.
BRIAN DALTON SR.
MEMORANDUM IN SUPPORT OF DEFENDANTS'S MOTION FOR NEW HEARING
Now comes the Defendant, Brian K. Dalton Sr., who moves this Honorable Court to grant a new hearing on the extention of a 209A Restraining and Abuse Prevention Order as the procedures used by Officer DeLeo, of the Winthrop Police Department, were uninformative, unformitable, and down-right unusual. I will prove that standard procedures were not followed, therefore leading to my inability to defend myself on the previously mentioned 209A Extention Hearing date [8-21-08].
FACTS
On Wednesday, August 20th 2008, I was contacted, via telephone, by Officer DeLeo of the Winthrop Police Department. The officer stated that an Emergency Restraining and Abuse Prevention Order was just issued against me. He stated that we were on a recorded line and asked if I understood that, to which I answered "yes", I understood. The officer continued on that I was "offically served", pertaining to the fact that I was notified by him, on the recorded line, of the Emergency 209A order that was taken out against me. Officer DeLeo explained that I was not to contact the plantiff [Maria LaMonica] in any way. He said I could not call her [directly or through 2nd, 3rd, 4th, etc. parties], I could not write to her, go to her house, email her, and a list of other things which he covered, in detail. He then stated that since I'd been "offically served" of my 209A order over a recorded line, he could mail the actual paperwork to me or I could pick it up next time I was in Winthrop. I then asked what would happen next, pertaining to my emergency 209A order, to which he replied," I'll get back in touch with you with any new information".
Two days after that recorded conversation, I received a call from Officer DeLeo again. He stated that my emergency 209A order was extented to a permenant order, that stretched through-out the year. I then asked the officer when I'd have my chance to tell my side of the story. He then stated that the original emergency 209A order was a 24 hour order and that a hearing was set for Maria LaMonica and myself [Brian Dalton] on Thursday August 21st, 2008. I then stated to the officer that he never informed me of a hearing date when I was verbally served by him and that it was his responsibility to let me know about any hearing dates, since all the information in that emergency order was delivered by telephone by him and that he also stated that he would keep me updated on the orders' status. Officer Deleo then became silent for a moment, then stated that I'd have to explain to the court that he never provided me with a date for my hearing. I assume his silence at that moment was the relization of his mistake and of slight regret. It was a mistake and everyone makes them, so I told Officer DeLeo that I'd notify the courts of the situation; hence this motion respectfully submitted by myself.
ISSUE
The officers choice to verbally serve the court order over a recorded line led to his failure to disclose the specifics of the hearing procedure that was to follow his serving of said order. This led the defendant to believe that the officer's statement that he'd "get back in touch" would give him futher information on how and when to move forward in this matter.
ANALYSIS
Verbally serving a court-order, if not read word-for-word, from beginning to end, leaves too much open interpetation into what was actually stated or not stated. Even with the recorded transcripts of the conversation, it leaves too wide of a lapse in time until a court can determine what and what was not actually said. A lapse in time that could, and in this case, did cause the default of a court apperance.
CONCLUSION
Defendant [Brian K. Dalton] in this matter had no way to know the date of the hearing in this matter. With the recorded line, and the willingness of an honest Officer DeLeo to admit his oversight, the court must give the defendant a chance to be heard in this matter, as it is in no way a matter of fault on his part. I respectfully ask that a hearing to determine if a tempory Emergency Restraining and Abuse Prevention Order against Defendant; Brian K. Dalton, by Plantiff' Maria LaMonica be extented or terminated, on that set day.
Respectfully submitted by and through myself,
Brian K. Dalton Sr.
14 Nelson Ave.
Tewksbury, MA 01876
(978) 394-7886
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY, DISTRICT COURT
EAST BOSTON DISTRICT COURT DOCKET# 0805RO259
MARIA LAMONICA
v.
BRIAN DALTON SR.
AFFIDAVIT
I, Brian K. Dalton Sr., hereby state the following:
1. I, Brian K. Dalton Sr.,am the defendant in the fore-mentioned motion.
2. I am acting pro-se, as my own councel in this matter.
3. After careful analysis of this matter, evidence shows Officer DeLeo's mistakes in serving said order, led to the defendants inability to defend himself in the extention hearing for the Emergency 209A order.
4. It is in my personal opinion that the defendants' right to a fair hearing was violated and in the interest of the court and our fair judiciary system, the defendant should recieve a new hearing.
Sworn under the pains and penalties of perjury on this the 24th day of August 2008.
Brian K. Dalton Sr.
SUFFOLK COUNTY, DISTRICT COURT
EAST BOSTON DISTRICT COURT DOCKET# 0805RO259
MARIA LAMONICA
v.
BRIAN DALTON SR.
DEFENDANT'S MOTION FOR NEW HEARING
Now comes the Defendant, Brian Dalton Sr., who moves the honorable court to grant a new hearing for the permenant extention of a 209A Restraining and Abuse Prevention Order that was granted to Maria LaMonica on the 21st day August 2008, against the said Defendant. Defendant requests new hearing on the basis of procedural mistakes by the Winthrop Police Department's Officer DeLeo in serving said Defendant with Emergency Restraining and Abuse Prevention Order
on the 20th day of August 2008.
In support therefor, please find attached the Defendants Memorandum of Law as well as the Affidavit of Brian K. Dalton Sr.
Respectfully submitted by Defendant,
Brian K. Dalton Sr.
14 Nelson Ave.
Tewksbury, MA 01876
(978) 394-7886
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY, DISTRICT COURT
EAST BOSTON DISTRICT COURT DOCKET# 0805RO259
MARIA LAMONICA
v.
BRIAN DALTON SR.
MEMORANDUM IN SUPPORT OF DEFENDANTS'S MOTION FOR NEW HEARING
Now comes the Defendant, Brian K. Dalton Sr., who moves this Honorable Court to grant a new hearing on the extention of a 209A Restraining and Abuse Prevention Order as the procedures used by Officer DeLeo, of the Winthrop Police Department, were uninformative, unformitable, and down-right unusual. I will prove that standard procedures were not followed, therefore leading to my inability to defend myself on the previously mentioned 209A Extention Hearing date [8-21-08].
FACTS
On Wednesday, August 20th 2008, I was contacted, via telephone, by Officer DeLeo of the Winthrop Police Department. The officer stated that an Emergency Restraining and Abuse Prevention Order was just issued against me. He stated that we were on a recorded line and asked if I understood that, to which I answered "yes", I understood. The officer continued on that I was "offically served", pertaining to the fact that I was notified by him, on the recorded line, of the Emergency 209A order that was taken out against me. Officer DeLeo explained that I was not to contact the plantiff [Maria LaMonica] in any way. He said I could not call her [directly or through 2nd, 3rd, 4th, etc. parties], I could not write to her, go to her house, email her, and a list of other things which he covered, in detail. He then stated that since I'd been "offically served" of my 209A order over a recorded line, he could mail the actual paperwork to me or I could pick it up next time I was in Winthrop. I then asked what would happen next, pertaining to my emergency 209A order, to which he replied," I'll get back in touch with you with any new information".
Two days after that recorded conversation, I received a call from Officer DeLeo again. He stated that my emergency 209A order was extented to a permenant order, that stretched through-out the year. I then asked the officer when I'd have my chance to tell my side of the story. He then stated that the original emergency 209A order was a 24 hour order and that a hearing was set for Maria LaMonica and myself [Brian Dalton] on Thursday August 21st, 2008. I then stated to the officer that he never informed me of a hearing date when I was verbally served by him and that it was his responsibility to let me know about any hearing dates, since all the information in that emergency order was delivered by telephone by him and that he also stated that he would keep me updated on the orders' status. Officer Deleo then became silent for a moment, then stated that I'd have to explain to the court that he never provided me with a date for my hearing. I assume his silence at that moment was the relization of his mistake and of slight regret. It was a mistake and everyone makes them, so I told Officer DeLeo that I'd notify the courts of the situation; hence this motion respectfully submitted by myself.
ISSUE
The officers choice to verbally serve the court order over a recorded line led to his failure to disclose the specifics of the hearing procedure that was to follow his serving of said order. This led the defendant to believe that the officer's statement that he'd "get back in touch" would give him futher information on how and when to move forward in this matter.
ANALYSIS
Verbally serving a court-order, if not read word-for-word, from beginning to end, leaves too much open interpetation into what was actually stated or not stated. Even with the recorded transcripts of the conversation, it leaves too wide of a lapse in time until a court can determine what and what was not actually said. A lapse in time that could, and in this case, did cause the default of a court apperance.
CONCLUSION
Defendant [Brian K. Dalton] in this matter had no way to know the date of the hearing in this matter. With the recorded line, and the willingness of an honest Officer DeLeo to admit his oversight, the court must give the defendant a chance to be heard in this matter, as it is in no way a matter of fault on his part. I respectfully ask that a hearing to determine if a tempory Emergency Restraining and Abuse Prevention Order against Defendant; Brian K. Dalton, by Plantiff' Maria LaMonica be extented or terminated, on that set day.
Respectfully submitted by and through myself,
Brian K. Dalton Sr.
14 Nelson Ave.
Tewksbury, MA 01876
(978) 394-7886
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY, DISTRICT COURT
EAST BOSTON DISTRICT COURT DOCKET# 0805RO259
MARIA LAMONICA
v.
BRIAN DALTON SR.
AFFIDAVIT
I, Brian K. Dalton Sr., hereby state the following:
1. I, Brian K. Dalton Sr.,am the defendant in the fore-mentioned motion.
2. I am acting pro-se, as my own councel in this matter.
3. After careful analysis of this matter, evidence shows Officer DeLeo's mistakes in serving said order, led to the defendants inability to defend himself in the extention hearing for the Emergency 209A order.
4. It is in my personal opinion that the defendants' right to a fair hearing was violated and in the interest of the court and our fair judiciary system, the defendant should recieve a new hearing.
Sworn under the pains and penalties of perjury on this the 24th day of August 2008.
Brian K. Dalton Sr.
