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COMMONWEALTH vs. CESAR C. ANDRADE.
At the trial of an indictment for first degree murder in which the evidence could have supported a verdict of voluntary manslaughter committed in the heat of passion based on provocation, erroneously admitted hearsay evidence of the defendant's prior abuse of the victim was merely cumulative of ample other evidence of the defendant's intent and state of mind and could not have prejudiced the jury, considering the weakness of the case for a verdict of voluntary manslaughter and a lengthy curative instruction given as part of the judge's final charge to the jury. [237-242] O'CONNOR, J., dissenting, with whom LIACOS, C.J., joined.
INDICTMENT found and returned in the Superior Court Department on May 8, 1989.
The case was tried before James J. Nixon, J.
defendant, Cesar C. Andrade, of murder in the first degree of his wife, Maria Andrade. [Note 1] Represented by new counsel on appeal, the defendant argues that the erroneous admission of hearsay evidence from five witnesses, who testified that the victim had told them of various acts of physical abuse and intimidation committed by the defendant, requires a new trial. We conclude that this evidence, while wrongly admitted, could not have prejudiced the defendant and did not deprive him of a fair trial. We reject the defendant's other arguments that he should be granted a new trial because of the admission of inflammatory videotapes and photographs, improprieties in the prosecutor's closing argument, and errors in preliminary and final instructions to the jury. We also conclude that no basis exists to exercise our authority under G. L. c. 278, s. 33E (1994 ed.), to reduce the verdict to one of voluntary manslaughter or to grant a new trial. Accordingly we affirm the defendant's conviction of murder in the first degree.
We shall report in more detail the evidence and other pertinent matters in connection with our discussion of the issues raised on appeal. As a preliminary point, it is sufficient to note that the defendant conceded that he had killed his wife in the early morning hours of April 26, 1989, but contended that he had acted without malice, in the sudden transport of passion, and was, therefore, not guilty of murder in the first degree.
witnesses testified to hearing from the victim that she had been beaten by the defendant. Several witnesses testified that the victim told them the defendant had threatened to kill her one of the victim's sisters testified that the victim had told her of beatings and threats. The victim also told this sister that, if the victim locked herself in the bedroom or the bathroom, the defendant would pick the locks to gain access to her, and that he had ripped up her clothes so she could not go out. The victim's brother testified that the victim told him the defendant had ripped out some wiring in her automobile so that she could not go out.
As the Commonwealth properly conceded at trial, after the prosecutor studied more carefully decisions that she had relied upon to gain admission of the testimony, the evidence was inadmissible hearsay. See Commonwealth v. Zagranski, 408 Mass. 278 , 282-283 (1990); Commonwealth v. Lowe, 391 Mass. 97 , 105, cert. denied, 469 U.S. 840 (1984). The question, then, becomes whether the error caused prejudice to the defendant, requiring reversal of the verdict. See Commonwealth v. Zagranski, supra at 283. The defendant argues that he incurred prejudice because the admission of the evidence strongly tended to suggest that the victim's death was the culmination of weeks of beatings and threats, rather than the product of a sudden loss of self-control caused by proof of sexual infidelity.
We agree that the erroneously admitted evidence was relevant to the defendant's intent and state of mind with regard to the victim. Nonetheless, because of the nature of the evidence as a whole, we conclude that the testimony at issue could not have prejudiced the defendant or denied him a fair trial.
law and another woman. Each of these women heard the defendant express an intent to kill his wife first, and then to kill himself. Three days before the killing, the victim's younger sister saw the defendant deliberately hit the victim's automobile with his automobile, and then attempt to hit the victim. On the evening of April 25, the defendant was observed to hit the victim's automobile with his own, hard enough to break the taillight of the victim's automobile. In his statement to the police, the defendant confirmed this history of recent marital discord. He had suspected the victim of "running around on him" for a lengthy period of time, and he had been following her to find out if this was true. About three weeks before her death, he said, he had damaged her automobile to keep her at home.
The erroneous admission of the victim's statements should not have occurred. Had they provided the only relevant evidence bearing on the relationship between the defendant and the victim, a new trial would be required. Here, there was ample other evidence of threats, acts of physical violence, marital discord, and suspicions of infidelity, to render the erroneously admitted evidence cumulative on the points of the defendant's intent and his state of mind on the evening of the killing.
with her "because she had been lying to [him]." After the killing, he returned to his bed "and tried to relax." [Note 4] There was a dearth of evidence tending to show that the defendant had lost control of himself on the night of the killing and acted in the heat of passion rather than after a period of brooding and reflection. See Commonwealth v. McLeod, supra (jury must be able to infer that "in fact [the] defendant was provoked and did not cool off").
admitting the hearsay evidence did not prejudice the defendant and does not constitute a basis for a new trial. See Commonwealth v. Zagranski, supra at 284.
2. In the second of his two statements to the police, [Note 6] the defendant told the interrogating officers that the victim came into the room where he was sleeping around 6 A.M. on April 26, holding a knife. He then followed her into her bedroom, where she became violent, stabbing herself in the stomach. He wrestled with her, trying to gain possession of the knife, and in the process pushed her out into the hallway and toward the bathroom. She swiped at him with the knife with one hand, while fending him off with the other, and again stabbed herself, this time in the chest and the head. She fell on her knees in the bathroom. He "finish[ed] her off" by stabbing her three times in the back. Questioned about this last statement, he agreed that he might have stabbed her more than three times.
photographs of the apartment, including close-up photographs of bloodstains, and two photographs of the victim's body. During the medical examiner's testimony, nine autopsy photographs were admitted in evidence.
The defendant objected that showing two videotapes was unnecessarily duplicative; he also objected to the admission of the autopsy photographs. On appeal, he argues that the judge abused his discretion by permitting both videotapes to be shown to the jury, and suggests the admission of numerous still photographs aggravated the prejudice caused by this error.
We have examined the photographs and videotapes at issue. The Commonwealth properly introduced a limited number of autopsy photographs, sufficient to demonstrate the extent of the victim's wounds, and probative on the point whether those injuries could have been self-inflicted, as well as on the question of extreme atrocity or cruelty. The first videotape was a fair depiction of the crime scene, see Commonwealth v. Simmons, 419 Mass. 426 , 432 (1995); the second videotape showed the jury the layout of the apartment (no view was taken), so that they could follow the testimony of the State trooper as, relying on the bloodstains, he described the probable progression of the defendant's assault on the victim. Almost all of the still photographs, like the second videotape, focused primarily on the bloodstains. This evidence eloquently contradicted the defendant's version of events, and was probative on the points of manslaughter, premeditation, and extreme atrocity or cruelty.
We have recently cautioned that trial judges "must take care to avoid exposing the jury unnecessarily to material that might inflame the jurors, emotions and possibly deprive the defendant of an impartial jury." Commonwealth v. Simmons, supra. This case was tried five years before our admonition in the Simmons case. It is apparent from the transcript that the judge was sensitive to his obligation to avoid the admission of unnecessarily inflammatory material and took steps to meet this obligation. See note 8, supra. While we might not have reached the same decision on the question of showing of both videotapes of the apartment, we cannot say that the balance struck by the judge exceeded the limits of his discretion. See Commonwealth v. Benson, 419 Mass. 114 , 118 (1994); Commonwealth v. Ramos, 406 Mass. 397 , 407 (1990).
3. The remaining issues argued by the defendant do not require extensive discussion.
a. The judge's brief preliminary remark to the jury, to the effect that witnesses seldom lie, not objected to by the defendant, would have been better left unsaid, but could not have created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Hodson, 33 Mass. App. Ct. 930 , 931 (1992) The brief remark (much briefer than the remark made by the judge in the Hodson case), came at the outset of the trial as the judge explained to the jury their function as the finders of fact. We do not believe the jury would have connected it with the curative instruction, given three days later, suggesting that the victim had a motive for fabricating allegations of abuse.
b. In some respects, the prosecutor's closing argument improperly appealed to the jury's emotions and sympathies. [Note 9] See Commonwealth v. Walker, 421 Mass. 90 , 103 (1995): Commonwealth v. Graziano, 368 Mass. 325 , 332 (1975). The defendant's trial counsel did not object to the argument, which, until its concluding peroration, was, for the most part, a fairly reasoned discourse on the evidence heard by the jury. The judge instructed the jury to decide the case on the basis of the evidence, and to be fair and impartial. They were told that the arguments of the attorneys were not evidence, and that the defendant was to be presumed innocent until proved guilty beyond a reasonable doubt. Viewing the prosecutor's closing argument in the context of the entire trial, and the judge's instructions, we conclude that flaws in that argument did not give rise to a substantial likelihood of a miscarriage of justice. See Commonwealth v. Mello, 420 Mass. 375 , 379-381 (1995); Commonwealth v. Marquetty, 416 Mass. 445 , 449-452 (1993).
c. Finally, the defendant argues that certain omissions from the judge's charge, to which there also was no objection at trial, constitute reversible error. We disagree.
The judge instructed the jury that if the defendant used excessive force in defending himself against an assault by the victim, he would be guilty only of voluntary manslaughter The defendant complains that the judge failed to instruct the jury that "perfect self defense is a complete defense to the charge [of murder]." On no view of the evidence would the defendant have been entitled to a verdict of not guilty on the ground of self-defense. He admitted to "finish[ing] [the victim] off" by stabbing her in the back while she lay bleeding on the floor of the bathroom. A judge does not err by failing to instruct on a theory which has no basis in evidence. See Commonwealth v. Carrion, 407 Mass. 263 , 268 (1990).
alcohol, there was no evidence of debilitating intoxication that would have hindered the defendant from comprehending that he was stabbing the victim. Contrast id. at 299. In the defendant's statements to the police, he never suggested that his ability to perceive and comprehend his circumstances was impaired by alcohol when he stabbed the victim. There was no evidence that he had consumed a large amount of alcohol that night, and there was evidence that at least some of his consumption of alcohol took place after the victim had been killed. [Note 12] On the state of the evidence, we are satisfied the lack of an instruction in accord with the decision in Sama could not have affected the verdict reached by the jury.
4. The defendant seeks a new trial pursuant to G. L. c. 278, s. 33E. After reviewing the record as a whole, we conclude that no new trial is required. The defendant deliberately and brutally murdered his wife. The interests of justice do not require a new trial.
O'CONNOR, J. (dissenting, with whom Liacos, C.J., joins). To obtain a conviction of murder, the Commonwealth was required to prove beyond a reasonable doubt that the defendant's killing of his wife was not voluntary manslaughter. This is so because, as the court recognizes, the evidence warranted a finding of voluntary manslaughter; that is, there was "evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and . . . the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool." Ante at 237, quoting Commonwealth v. Schnopps, 383 Mass. 178 , 180 (1981), S.C., 390 Mass. 722 (1984).
instructed the jurors to disregard that testimony, the jury returned a verdict of guilty of murder. Presumably, the jury were satisfied beyond a reasonable doubt that the killing was not the product of a sudden loss of self-control in the heat of passion provoked by the defendant's confirmation of his earlier suspicion of his wife's (the victim's) infidelity. The critical question is whether the erroneous admission of that testimony might have influenced the jury's decision. Unless the court can rightly say that no such possibility exists, we cannot be confident that the defendant had a fair trial, and the conviction of murder must be reversed.
the killing. Did the error possibly weaken the defendant's case in some significant way? I think it did. Is the court in a position to say that the inadmissible hearsay evidence had no effect on the verdict? I think not.
As the court states, ante at 239, "the Commonwealth's case contained compelling admissible evidence of considerable marital discord" evidenced, in part at least, by loud argue meets between the victim and the defendant. Such discord says little, if anything, about whether the killing was the result of the defendant's sudden loss of control provoked by his confirmation of the victim's unfaithfulness. Furthermore, did the jury believe the testimony that the defendant had expressed an intent to kill his wife and himself? Did they believe the testimony that (1) the defendant had driven his automobile into the victim's automobile with enough force to break a taillight, and (2) had "attempted" to hit the victim? If they did believe it, did they attach importance to it, or did they simply focus on the inadmissible hearsay? Of course, it is possible that the jury believed that testimony and without reference to the inadmissible hearsay concluded that the killing was not manslaughter but was murder. It is also possible, however, that, because of disbelief of at least some of that testimony or because of doubt about what it proved relative to whether the killing was manslaughter or murder, the jury concluded beyond a reasonable doubt that it was murder only by taking into account the testimony of the five witnesses relative to threats and beatings over an extended period of time. That testimony, inadmissible as it was, strongly tended to show that the killing was other than a sudden impulsive reaction to a recent provocation. Despite the judge's instructions, the jury may have relied on it to reach their verdict. Not only the court, but I, too, "harbor some doubt of the complete efficacy of a curative instruction striking portions of testimony heard by the jury three or four days earlier." Ante at 241. Whether the verdict in this case was influenced by inadmissible hearsay evidence is a matter of doubt. That doubt should be resolved in the defendant's favor. "Whether guilty or innocent, he was entitled to be tried in accordance with law." Commonwealth v. Stone, supra at 474.
[Note 1] The Commonwealth proceeded on the basis that the jury would be warranted in returning a verdict of murder in the first degree either on the basis of premeditation or extreme atrocity or cruelty. So far as can be determined from the record, the verdict slip did not require the jury to choose between these theories. The defendant does not contend that the record lacks adequate evidence to support the jury's verdict of murder in the first degree on each theory.
[Note 2] The judge also instructed the jury that if they found that the victim had struck a first blow, stirring the defendant to respond in the heat of passion, and without malice, then a verdict of voluntary manslaughter would be warranted. On no reasonable view of the evidence could the victim's death be considered voluntary manslaughter based on loss of control provoked by sudden combat. "[P]hysical contact between a defendant and a victim is not always sufficient to warrant a manslaughter instruction, even when the victim initiated the contact." Commonwealth v. Walden, 380 Mass. 724 , 727 (1980). See Commonwealth v. Rembiszewski, 363 Mass. 311 , 321 (1973), S.C., 391 Mass. 123 (1984). In two statements to the police, the defendant never suggested that the victim had attacked him. His wounds were minor. He admitted to "finish[ing] [the victim] off, by deliberately stabbing her in the back while she lay on the floor of the bathroom. Even assuming that the victim attempted to fend him off with the knife, this would not be adequate provocation, as matter of law, for a deliberate killing in this manner. This instruction provided the defendant with a benefit he clearly was not entitled to.
[Note 3] In an oral statement to the police, the defendant said he told his wife, "If he is a nice guy, go for it. In response, his wife told him that she was not really looking for another man, and did not want a new relationship until she had had the opportunity to establish herself in her own apartment. This conversation stands in contrast to one described in the case or Commonwealth v. Schnopps, 383 Mass. 178 , 180 (1981), S.C., 390 Mass. 722 (1984), in which the victim taunted the defendant with her infidelity.
[Note 4] A State trooper trained in the analysis of bloodstain evidence called by the Commonwealth, testified that there were numerous small flakes of blood of the victim's blood type near the foot of the bed the defendant had been using, suggesting that he had gotten in bed with his feet covered in her dried blood.
[Note 5] The judge instructed the jury that evidence of this sort was not considered reliable because it concerned statements of the defendant "not observed or heard by anyone who was available to testify at the trial" who could be cross-examined concerning the truth of the alleged statements. The judge also suggested that the truth of the statements might be doubted because in making them, the victim might have been motivated by guilt over her own conduct or a desire to enlist her family members on her side in her dispute with her husband.
[Note 6] In his first statement to the police, the defendant asserted that the victim had committed suicide.
[Note 7] The medical examiner explained that a stab wound is one that penetrates deeper into the body than it measures along the skin's surface. A cut, or incised wound, is longer on the skin surface than it is deep.
[Note 8] The videotapes were entered in evidence and shown to the jury, hut were not given to the jury with the other exhibits during their deliberations. At the judge's direction, when the second videotape was shown to the jury, the Commonwealth used the "fast-forward" feature at the end of the videotape to avoid an undue focus on the body of the victim.
[Note 9] At the close of her argument, the prosecutor "suggested" to the jury that the evidence in the case "crie[d] out for justice," and asked the jury to "do justice." These comments should not have been made. We do not consider improper the use of the words "blood bath," to describe the bathroom where the victim was found. The prosecutor was arguing, from the evidence, that the defendant likely had suffered the cuts to his hands when they slipped on the knife, which must have been, like the rest of the room, covered in blood. Other complaints made by the defendant about the prosecutor's closing argument fall into the same category. We assume that the jury have a sufficient measure of sophistication to screen out a degree of hyperbole. See Commonwealth v. Marquetty, 416 Mass. 445 , 451 (1993).
[Note 10] On the view we take of the evidence in this case, we need not decide whether the decision in "Commonwealth v. Sama, 411 Mass. 293 (1991), is to be applied prospectively to cases tried after the date of that decision or whether it applies to cases pending on appeal." Commonwealth v. Judge, 420 Mass. 433 , 436 n.2 (1995).
[Note 11] The defendant claims that the judge erred by giving a definition of malice that failed to inform the jury of its subjective component. It is true that at one point in his charge to the jury, the judge gave a shorthand definition of the third prong of malice that lacked a reference to its subjective component, but he had previously given a full and appropriate definition of the third prong of malice, and the shortened definition was given when he referred the jury back to the instruction he had previously given. The judge's instructions on malice were not a model of clarity, but, viewed as a whole, the instructions adequately informed the jury of the elements they must consider in reaching a verdict on the charges against the defendant.
[Note 12] A partially empty bottle of blackberry brandy found in the apartment had bloodstains on its cap. These stains contained type A blood and type B blood (the victim's blood type).

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When a policyholder first learns that they are facing litigation (or any third-party claim), they are immediately confronted with many pressing concerns. The primary concern is mounting a robust defense against the new claim. In such circumstances, it is unsurprising that a policyholder sometimes incurs defense costs before they can provide notice of the claim to their insurer.
Yet, when policyholders request reimbursement for defense costs incurred prior to notice, most insurers refuse to pay in the first instance, even if they have otherwise accepted coverage. Policyholders – who are often relieved to at least have coverage going forward – may assume that pre-notice defense costs are never covered, and, as a result, frequently do not pursue payment of these costs. However, as cases from numerous jurisdictions demonstrate, insurance often covers pre-notice defense costs.
Last year, for example, two federal courts required insurers to cover pre-notice defense costs. See CH Properties, Inc. v. First American Title Insurance Co., No. CIV. 13-1354 FAB, 2014 WL 4417772 (D.P.R. Sept. 9, 2014); Episcopal Church in South Carolina v. Church Insurance Company of Vermont, 53 F. Supp. 3d 816 (D.S.C. 2014). Both courts reviewed decisions nationwide, held that those cases requiring coverage for pre-notice defense costs were rightly decided, and required insurers to pay pre-notice defense costs (even those incurred long before the insureds provided notice).
CH Properties, Episcopal Church, and the cases cited therein all follow a simple and compelling logic. First, where an insurer has the right to control the defense of a claim, that right typically begins as soon as a claim arises. CH Properties, 2014 WL 4417772, at *9. Next, an insurer’s duty to defend (including its obligation to pay defense costs) must arise at the same time as its attendant right to control the defense, as any other rule “creates a time gap between the insurer’s right to control the defense and its duty to provide one.” Id. Finally, in most jurisdictions, an insurer can limit coverage based on late notice only where it can also show it was prejudiced by the untimely notice. Id. This so-called notice-prejudice rule means that late notice has no impact on the insurer’s coverage obligations (including the duty to defend) unless prejudice is shown. Thus, because the duty to defend begins when a claim arises and late notice (absent prejudice) typically has no impact on the duty to defend, an insurer must cover defense costs from the beginning of a claim, regardless of when notice is provided. Episcopal Church, 53 F. Supp. 3d at 829.
While some earlier decisions reached the opposite conclusion, a close reading of these rulings demonstrates that “[i]n none of those cases . . . does the court give any reasoned basis for such an approach.” Sherwood, 347 Md. at 46. Rather, these courts appear to be “parroting a conclusion” that may have some “rational basis” only in the minority of jurisdictions that do not accept the notice-prejudice rule, but that “no longer is justified” in the majority of states applying the notice-prejudice rule. Id. at 47. Not only is the rule obligating insurers to pay pre-notice defense costs already the rule in many states, it is also the better approach, especially in any jurisdiction applying the notice-prejudice rule.
Therefore, while the importance of providing prompt notice cannot be overstated, policyholders should not forget that in many instances they may be entitled to recover defense costs incurred prior to the notice of a claim.
 See, e.g., Liberty Mut. Ins. Co. v. Black & Decker Corp., 383 F. Supp. 2d 200, 207 (D. Mass. 2004); Sherwood Brands, Inc. v. Hartford Acc. & Indem. Co., 347 Md. 32, 50 (1997); Aetna Casualty & Surety Co. v. Dow Chemical Co., 44 F. Supp. 2d 847 (E.D. Mich. 1997); TPLC, Inc. v. United Nat’l Ins. Co., 44 F.3d 1484, 1493 (10th Cir. 1995) (applying Pennsylvania law).
 Following this logic, the duty to defend also preexists the applicability of any provisions (as found in certain insurance policies) that prohibit an insured from making voluntary payments – meaning that such provisions will not bar coverage of pre-notice defense costs unless an insurer can demonstrate it was prejudiced by the payment of these costs. See Dow Chemical, 44 F. Supp. 2d at 858-59; CH Properties, 2014 WL 4417772, at *9.

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matches: V. V. V. V. V. V. V. V. V. V. V. V. V.


Bristol. December 4, 2014. – April 17, 2015.
Present: Cohen, Fecteau, & Massing, JJ.
Constitutional Law, Waiver of constitutional rights by juvenile, Admissions and confessions. Practice, Criminal, Motion to suppress, Admissions and confessions, Waiver. Waiver.
Complaint received and sworn to in the Bristol County Division of the Juvenile Court Department on September 28, 2012.
Indictments found and returned in the Superior Court Department on November 1, 2012.
A pretrial motion to suppress evidence was heard by Lawrence Moniz, J., in the Bristol County Division of the Juvenile Court Department.
An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.
Joseph Maggiacomo, III, for the juvenile.
MASSING, J. Following the execution of a search warrant, resulting in the discovery of a handgun and several bags of heroin in the defendant youthful offender’s bedroom, the Taunton police arrested the juvenile and took him to the police station to question him about his suspected involvement in a shooting that took place on the railroad tracks near his home. Because he was sixteen years old, the police arranged for the juvenile’s guardian to be present during questioning. A Juvenile Court judge found that the juvenile validly waived his Miranda rights at the outset of questioning, but that the police failed to honor his mid-interview request to consult with his guardian. Accordingly, the judge denied the juvenile’s motion to suppress statements made during the first part of the interview, but allowed the motion with respect to statements made after his request to consult. We affirm.
Background. The facts found by the judge at the hearing on the motion to suppress, as amplified by uncontested evidence presented at the hearing and by the contents of the videotaped interview, are as follows. On September 22, 2012, at approximately 8:30 P.M., two Taunton police officers went to the apartment where the juvenile lived with his guardian, Crystal Courtney, to execute a search warrant for a firearm as part of an investigation into a shooting. After discovering a handgun and several glassine bags containing a substance that appeared to be heroin in the juvenile’s bedroom, the officers arrested the juvenile and transported him to the police headquarters for questioning. The police advised Ms. Courtney that she could accompany the juvenile, who was sixteen years, ten months old at the time, to the station to act as an interested adult and brought her to the police station shortly after the juvenile’s arrival.
At approximately 11:06 P.M., Detective Lynne Pina commenced a videorecorded interrogation of the juvenile in a small interview room at the station, assisted by Brian Dunham, another officer from the department. Pina gave the juvenile and Ms. Courtney a notification of rights form, read them the Miranda rights from the form, and gave them an opportunity to read it themselves. Neither Pina nor Dunham left the room. Without requesting an opportunity to speak to each other in private, the juvenile and his guardian signed the rights form.
Pina began the interview by questioning the juvenile about the night of the shooting. He initially denied any involvement. At approximately 11:31 P.M., another officer interrupted the interrogation to say that the video equipment was not recording. Pina and Dunham left the interview room to address the problem. When they returned approximately four minutes later, Pina told the juvenile, “We will pick up where we left off; you have been given rights and signed forms,” and resumed the interrogation.
Before the officers left the room, Ms. Courtney asked whether the video recording machinery would continue to record; she was told that it would. The officers left the room, but watched the juvenile and his guardian on a screen in the detectives’ room. Speaking in low tones, the juvenile and Ms. Courtney began to exchange Ms. Courtney’s cellular telephone (phone). The juvenile first took the phone, entered some text, and showed it to her. She entered some text and returned the phone to him. After about thirty seconds, while the juvenile was entering text on the phone, Pina returned to the interview room and told the juvenile to stop. He complied and returned the phone to Ms. Courtney. When Pina left them alone this time, they did not speak any more. Ms. Courtney broke into tears and hugged the juvenile until Pina and Dunham returned and resumed the interrogation at 11:50 P.M.
The interview continued for another twenty minutes. The juvenile first told the officers that a friend of his did the shooting, but when pressed further, he ultimately admitted that he shot the gun. During the rest of the interview, Ms. Courtney used her phone without any objection from the officers. The interrogation ended shortly after the juvenile’s confession.
The juvenile was charged, and later indicted, as a youthful offender for armed assault with intent to murder, G. L. c. 269, § 18(b); assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b); and unlawful carrying of a firearm, G. L. c. 265, § 10(a). After the motion judge decided the juvenile’s motion to suppress statements, the Commonwealth appealed from the partial suppression order, the juvenile cross-appealed from the partial denial of his motion, and a single justice of the Supreme Judicial Court allowed the Commonwealth’s application for interlocutory appellate review.
1. Opportunity to consult with interested adult. “Special caution . . . must be exercised in examining the validity of inculpatory statements made by juveniles.” Commonwealth v. MacNeill, 399 Mass. 71, 74 (1987), quoting from Commonwealth v. King, 17 Mass. App. Ct. 602, 609 (1984). In general, when police interrogation involves a juvenile over the age of fourteen, as is the case here, the juvenile “may properly waive his constitutional rights if, after having been advised of those rights, he was afforded an opportunity to consult with an interested adult who was informed of and understood those rights.” Commonwealth v. McCra, 427 Mass. 564, 567 (1998).
Whether the juvenile had a “realistic opportunity” to consult is the critical question, not whether he actually availed himself of the opportunity. Commonwealth v. MacNeill, supra at 78. See Commonwealth v. McCra, supra at 567-568. The Commonwealth is not required to establish that the adult and juvenile actually had a private consultation. Commonwealth v. Philip S., 414 Mass. 804, 811-812 (1993). See Commonwealth v. McCra, supra at 568; Commonwealth v. Guthrie G., 66 Mass. App. Ct. 414, 416 (2006), S.C., 449 Mass. 1028 (2007). “The choice of a sixteen year old juvenile not to consult with an available friendly advisor concerning those matters suggests that the juvenile’s understanding was such that consultation was unnecessary.” Commonwealth v. Alfonso A., 438 Mass. 372, 381 (2003), quoting from Commonwealth v. MacNeill, supra at 79.
In Commonwealth v. Guthrie G., supra, the juvenile faced custodial interrogation at the police station after the police discovered a gun in his bedroom. The juvenile’s father met him at the police station to act as an interested adult, and the officer read the Miranda warnings to the juvenile and his father. The father signed the Miranda form. Although the officer did not specifically give the juvenile time to consult with his father about the meaning and consequences of waiving his rights, “either the father or the juvenile could have immediately asked to discuss the warnings privately or sought to exercise the Miranda rights after they were read.” Id. at 420. We concluded that “[t]he presence of the parent and child together” was sufficient to establish that the juvenile had an opportunity to consult with his father. Ibid.
Applying these standards, we agree with the motion judge that the juvenile had an opportunity to consult with his guardian and validly waived his rights before talking to Pina. Pina advised the juvenile of his Miranda rights in Ms. Courtney’s presence, and both the juvenile and she signed the waiver form. “Nothing more need be shown to demonstrate that the presence of [his guardian] gave the juvenile a realistic opportunity to get helpful advice if he needed it.” Commonwealth v. MacNeill, 399 Mass. at 78.
The Supreme Judicial Court has observed that the “better practice . . . with any juvenile is for the investigating officials explicitly to inform the juvenile’s parent, or other interested adult, that an opportunity is being furnished for the two to confer about the juvenile’s rights.” Commonwealth v. Philip S., 414 Mass. at 811 n.5. The juvenile urges us to require the police affirmatively to provide juveniles an opportunity to confer with an interested adult in private. However, the Supreme Judicial Court has specifically declined to impose such a requirement, see Commonwealth v. Ward, 412 Mass. 395, 397 (1992); Commonwealth v. Philip S., supra, at 812, and this court has rejected even the notion that “at a minimum . . . the parent must be physically present with the juvenile for a sufficiently long period of time prior to a waiver of Miranda rights, as would permit consultation should they wish to engage in it.” Commonwealth v. Guthrie G., 66 Mass. App. Ct. at 430-431 (Duffly, J., dissenting).
Therefore, the fact that the officers commenced the interrogation immediately after reading the juvenile and his guardian the Miranda rights, without leaving the room or offering the juvenile the opportunity to confer, is without legal significance. The mere presence of the juvenile and his guardian together facilitated “a request by one or both of them for consultation” if they had any “uncertainty in their minds.” Id. at 420. The Commonwealth is not required to show more. The judge’s partial denial of the motion to suppress was proper.
2. Mid-interrogation request to consult. For about ten minutes after remedying the malfunction in the videorecording machinery, the officers tried to persuade the juvenile to cooperate, even suggesting that he should speak with his guardian about what to do. The juvenile eventually did ask to for an opportunity to speak with Ms. Courtney. The officers left the room, but closely monitored the juvenile and his guardian from the detective’s room. When the juvenile and his guardian attempted to communicate privately using the guardian’s phone, Detective Pina quickly interrupted them and told the juvenile not to use the phone. The motion judge found that the police’s actions interfered with the juvenile’s opportunity to consult with an interested adult and suppressed any statements following this interference. We affirm this aspect of the judge’s order as well.
When a juvenile has waived his or her Miranda rights after an opportunity to confer with an interested adult, subsequent statements are presumptively admissible at trial. See Commonwealth v. Torres, 424 Mass. 792, 799 (1997). However, if the juvenile is not afforded this “genuine opportunity,” and the Commonwealth does not make an alternative showing of a “high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile,” the statements must be suppressed. Commonwealth v. Alfonso A., 438 Mass. at 384, quoting from Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). While, as discussed in part 1 supra, the police need not expressly inform the juvenile and the interested adult that they may confer in private, “the police may not properly deny them that right.” Commonwealth v. Ward, 412 Mass. at 397 (affirming denial of motion to suppress where mother and juvenile son declined opportunity to consult, but noting, “[w]e would have a different case, of course, if the mother or the son had stated a desire to discuss the matter and the police had not allowed them to do so in private”). ”If such a request has been made, it cannot be refused.” Commonwealth v. Guthrie G., 66 Mass. App. Ct. at 420.
After a person under custodial interrogation knowingly and voluntarily waives his or her Miranda rights, questioning may continue unless and until the subject makes an “unambiguous invocation” of the right to remain silent. Commonwealth v. Clarke, 461 Mass. 336, 342 (2012), quoting from Berghuis v. Thompkins, [560 U.S. 370, 381] (2010). See Commonwealth v. Hearns, 467 Mass. 707, 716-717 (2014). So, too, if a juvenile requests to consult with an adult to determine whether to invoke his or her Miranda rights after questioning has begun, the police cannot deny that opportunity. The interested adult rule is based on our recognition that most juveniles do not fully understand the significance of Miranda warnings when they hear them, and further, that juveniles often lack the capacity to fully appreciate the consequences of their actions. See Commonwealth v. A Juvenile, supra at 131-132; Commonwealth v. Alfonso A., supra at 382. To effectively evaluate and exercise these rights, a juvenile often requires the guidance of an adult “to ensure that his rights do not become forfeit through fear, confusion[,] or intimidation.” Taylor v. Commonwealth, 369 Mass. 183, 192 (1975). See Commonwealth v. Cain, 361 Mass. 224, 229, n.3 (1972) (“The Miranda warning that the [fifteen year old] boy had a right to consult a lawyer was hollow indeed when he was denied access to his father who, practically speaking, was the only avenue through which he could effectively evaluate and, if he wished, exercise the right to counsel”).
Of course, the juvenile’s right to request a mid-interview consultation with an interested adult must pertain to the Miranda rights. The interested adult rule is intended “to ensure that the waiver is knowing and intelligent.” Commonwealth v. MacNeill, 399 Mass. at 77. “Furthermore, the ultimate question is whether the juvenile has understood his rights and the potential consequences of waiving them before talking to the police.” Id. at 79. The consultation is not intended to substitute for legal advice. See Commonwealth v. Philip S., 414 Mass. at 812 n.6.
Here, the juvenile unambiguously requested to speak with his guardian to “make sure” whether he should “help” himself and “start cooperating with the case and the investigation,” as the officers were urging him or, instead, to end the interview. Once the juvenile made a request to consult with his guardian about the exercise of his Miranda rights, the police were obliged to afford them the ability to confer in private. See Hall v. State, 264 Ind. 448, 452 (1976) (“a meaningful consultation can occur only in the absence of the neutralizing pressures which result from police presence”).
The Commonwealth contends that once a juvenile has waived his or her Miranda rights, having had one opportunity for consultation with an interested adult, the juvenile no longer may request a private consultation to discuss whether to invoke the right to remain silent and cut off further questioning. We disagree. The purpose of the interested adult rule is to put a juvenile on a roughly even footing with an adult defendant in terms of understanding and making a meaningful decision to waive or invoke the Miranda rights. Accordingly, a sufficiently clear request to consult with an interested adult about those rights, which is essential to the juvenile’s understanding and effective exercise of them, must be honored as scrupulously as an adult defendant’s request to cut off questioning or to speak with an attorney. See Commonwealth v. Clarke, 461 Mass. at 343; Michigan v. Mosley, 423 U.S. 96, 104 (1975).
The motion judge determined that the officers’ actions “essentially truncated the communication between guardian and defendant.” The Commonwealth concedes that “the police imposed ground rules that may have had the effect of constraining conversation between the two,” but argues that the break in the interrogation alone was sufficient to “allo[w] the juvenile and his guardian to consider whether to continue with the interview or end it, or to continue only with the assistance of an attorney.” We agree with the motion judge that in the circumstances of this case, the constraining ground rules imposed by the police deprived the juvenile of a “genuine opportunity” to confer with his guardian about the exercise of his Miranda rights. The motion judge properly suppressed the statements the juvenile made after the police failed to honor his request to consult with an interested adult.
Conclusion. The Commonwealth met its burden of proving that the juvenile initially waived his Miranda rights after an opportunity to consult with an interested adult, but the police deprived the juvenile of an opportunity for meaningful consultation about his Miranda rights when he later asked to speak to his guardian. The order denying the juvenile’s motion to suppress in part and allowing the motion in part is affirmed.
COHEN, J. (concurring). I write separately to comment on our disposition of the juvenile’s cross-appeal from the judge’s partial denial of the motion to suppress. I agree that under current law the police are not required to give a juvenile over the age of fourteen an unsolicited opportunity to confer in private with an interested adult before obtaining a waiver of the juvenile’s Miranda rights. However, I believe that the time has come to revisit this issue.
In Commonwealth v. Philip S., 414 Mass. 804, 811 n.5 (1993), the Supreme Judicial Court observed that “the better practice . . . with any juvenile is for the investigating officials explicitly to inform the juvenile’s parent, or other interested adult, that an opportunity is being furnished for the two to confer about the juvenile’s rights” (emphasis added). The court further observed that “[a] private consultation . . . clearly is the most conducive means to [an] unconstrained and thorough discussion between the adult and child.” Id. at 812.
In light of what we have learned and continue to learn about the developmental immaturity that persists throughout the teenage years, cf. Roper v. Simmons, 543 U.S. 551, 569-574 (2005), quoting from Johnson v. Texas, 509 U.S. 350, 367 (1993) (recognizing that juveniles older than sixteen remain prone to “ill-considered actions and decisions”), fresh consideration should be given to requiring that the “better practice” and “most conducive means” identified in Philip S., supra, be followed in all juvenile cases.
 “Where the judge’s factual findings are based on a videotape of the defendant’s interview, ‘we . . . take an independent view of [statements made at the interview] and make judgments with respect to their contents without deference to the fact finder, who is in no better position to evaluate the[ir] content and significance.’” Commonwealth v. Bermudez, 83 Mass. App. Ct. 46, 50 (2012), quoting from Commonwealth v. Novo, 442 Mass. 262, 266 (2004).
 The record does not disclose Ms. Courtney’s age or relationship with the juvenile, other than that they lived together and that she was his guardian. The juvenile does not assert that she was unqualified or incompetent to act as an interested adult on his behalf.
 The juvenile argues that a different Juvenile Court judge abused his discretion in allowing the Commonwealth to file its notice of appeal and application for leave to appeal late. See Commonwealth v. Jordan, 469 Mass. 134, 147-148 (2014); Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501 (1996). Mindful of the fact that the single justice has already determined that the appeal warrants interlocutory review, we find no reason to disturb the Juvenile Court judge’s determination that the Commonwealth’s failure to timely file its notice and application was the result of excusable neglect; therefore, we focus our discussion on the merits. See id. at 149 & n.26.
 Effective September 18, 2013, the Legislature amended the definitions of “delinquent child” and “youthful offender” to include seventeen year olds. St. 2013, c. 84, § 7. See Watts v. Commonwealth, 468 Mass. 49, 50-51 (2014). Accordingly, the “interested adult” rule now applies to youths under the age of eighteen. Id. at 59.
 A waiver may still be valid without an opportunity for consultation so long as the circumstances “demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile.” Commonwealth v. Alfonso A., 438 Mass. 372, 380 (2003), quoting from Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983).
 By contrast, juveniles under the age of fourteen must have an “actual opportunity” to consult with an interested adult for their waivers to be valid. Commonwealth v. Mark M., 65 Mass. App. Ct. 703, 706 (2006). See Commonwealth v. A Juvenile, 389 Mass. at 134.
 On the other hand, a juvenile under the age of fourteen is unlikely to fully comprehend his rights without an actual consultation with an interested adult. Commonwealth v. A Juvenile, supra at 134.
 The juvenile testified at the motion to suppress that he understood his rights. Commonwealth v. Guthrie G., supra at 416, 420 n.10.
 Having found that the police “advise[d] the guardian not to use the phone, indicating that no phone use is allowed,” the motion judge considered it telling that the police did not object to Ms. Courtney’s use of her phone once the juvenile started to confess. Upon review of the videotape, it was clearly the juvenile’s use of the phone that prompted the interruption; the police never placed any limitations on Ms. Courtney’s use of the phone. Nonetheless, the police-imposed prohibition on the juvenile’s use of the guardian’s phone effectively ended any consultation between them.


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If you’re a fan of vocal close harmony, you should be very happy with the playlist of this week’s show because it’s chock full of female and male close harmony groups. We’re also going to celebrate the birthdays of Elliott Shaw and Victor Schertzinger. In the last segment of the show we’ll remind you how to get a free one-year, 12 issue subscription to The Syncopated Times, the national newspaper devoted to exploring the worlds of jazz, ragtime and swing. We’ll also have a couple of songs about good times and better times. There are at least a couple of records making their RRR debut. If you enjoy the show, please let us know by leaving a comment on the website or the Facebook page or sending an email to Glenn@RapidlyRotatingRecords.com. And remember, your requests and topic segments are always welcome. As always, just click on the link below to instantly listen streaming online and/or download the show.
From One To Two – Whitey Kaufman and the Original Pennsylvania Serenaders / Elliott Shaw, v.
A Siren Dream – Edwin J. McEnelly’s Orchestra / Elliott Shaw, v.
Gott Be Good – Nat Shilkret and The Victor Orchestra / The Four Rajahs, v.
Sometimes I’m Happy – Georgia Collegians (Willie Creager AHO) / The Locust Sisters, v.
You Don’t Like It, Not Much – Sol Wagner Orchestra / Brown Sisters & Green, v.
Cherr Up (Good Times Are Coming) – Selvin’s Orchestra / The Rollickers, v.
Headin’ For Better Times – Ted Lewis and His Band / Ted Lewis, v.


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Cooperation: seller knows or must have known that non necessary and distributable reserves are used to finance the acquisition and are transferred to the seller as part of the price (Art. 20a para. 2 FITA).
1 A system change occurs even if the purchaser declares its participation rights as part of business asset at the time of the acquisition pursuant to Art. 18 para. 2 FITA (see also Circular No. 14 of the FTA, dated 6.11.2007, para. 4.3).
Please refer to the German version.
What are the tax consequences for the seller in an indirect partial liquidation case?
What is the tax base in an indirect partial liquidation case?
Is the buyer faced with restrictions for the post deal integration in case of an agreed indirect partial liquidation clause in the purchase agreement?
Why does a seller ask for an indemnity in the SPA?
An individual resident Switzerland wishes to realise an income tax free capital gain. Such seller therefore has a strong interest to avoid an indirect partial liquidation taxation and if well advised will ask for a clause like the one below under which not required substance of the target is not distributed for five years after the completion of the transaction.
A would have to pay taxes on the full dividend payment of CHF 5 mio. as income from investment (Art. 20 para. 1 lit. c FITA). According to Art. 20 para. 1bis FITA he benefits from the partial exemption of income tax.
A AG would have to pay withholding tax on CHF 5 mio (Art. 4 para. 1 lit. b WHTA und Art. 20 WHT Ordinance).
A realizes a capital gain in accordance with Art. 16 para. 3 FITA subject to the below.
At the level of B AG, the book value principle applies from an income tax perspective. The dividend distribution impoverished A AG. B AG books the dividend as income, but B AG's book must be depreciated by the same amount of the impairment of the A AG shares.
According to Art. 69 f. FITA B AG may benefit from the participation relief, unless no impairment is booked.
Hence, no income tax will be payable.
Withholding tax is levied on A AG but may possibly only be reported.
A realizes no capital gain according to Art. 16 para. 3 FITA but income from investment persuant to Art. 20 para. 1 lit. c FITA (Art. 20a para. 1 lit. a FITA; Art. 7a para. 1 lit. a CCITHA).
Swiss resident sellers being individuals in a share purchase agreement often require on a non-distribution of assets to prevent an indirect partial liquidation.
8.1.1 Purchaser has been made aware of Seller's intention to derive a tax-free capital gain from the sale of Shares under this Agreement, as well as the Swiss income tax provisions and / or administrative guidelines regarding direct or indirect total or partial liquidation ("direkte oder indirekte Teil- oder Totalliquidation"), as set out in art. 20a of the Federal Act on Direct Federal Tax (DFT), Article 7a Federal Tax Harmonization Act, corresponding provisions of cantonal tax laws and Circular No. 14 of the Swiss Federal Tax Administration, dated 6 November 2007 ("Circular No. 14"), which concern Sellers who are Swiss resident individuals and own Shares as private property.
8.1.2 The Purchaser undertakes and assures, during a period of five years from Closing, not to take nor that the Company will take any measures after the Closing which a tax authority in Switzerland could qualify as direct or indirect total or partial liquidation in accordance with the aforementioned tax laws and / or Circular No. 14 and thus would lead to a re-classification of the Seller's private capital gain into taxable investment income.
8.1.3 In case of a violation of any obligations of this Section 8, Purchaser shall be liable to Seller for any tax consequences ( Swiss federal tax, cantonal tax, municipal tax, church tax including any related interest, penalties, costs and expenses, court and reasonable attorney’s fees) on the Seller and shall fully indemnify the Seller, irrespective of any fault and without any limitations by this Agreement or the CO. Purchaser's obligation to indemnify the Seller survives even if Purchaser disposes of the Shares during the five year-period which is relevant for purposes of the direct or indirect partial or total liquidation set forth above. Purchaser undertakes to use all efforts and assures that Company uses all efforts (at their costs) to assist Seller in the defense of any negative tax consequences.
8.1.4 The Purchaser shall in the case of a subsequent transfers of share interest in the Company include the same restrictions as set forth in this Section 8 and the obligation to include such clause in any subsequent share purchase agreement, transfer or contribution agreement during the five year blocking period counted as per Closing.
8.1.5 The Seller agrees to fully cooperate with the Purchaser in order to obtain any ruling which the Purchaser requests at its sole discretion and at the Purchaser's costs. Without prejudice to the generality of the foregoing, the Seller agrees to promptly provide the Purchaser with a power of attorney to file the ruling on behalf of the Seller at the Purchaser’s first request, it being understood that the Purchaser will keep the Seller informed.

matches:
Art. 18
Art. 20
Art. 20
Art. 16
Art. 69
Art. 16
Art. 20
Art. 7
art. 20


TODRES & COMPANY, LLP, Defendant.
LORNA G. SCHOFIELD UNITED STATES DISTRICT JUDGE.
Plaintiff Herman Ortiz brings this action under the retaliation provisions of the False Claims Act (“FCA”), 31 U.S.C. § 3730(h). Plaintiff alleges that he was fired by his former employer, Defendant Todres & Company, LLP (“Todres & Co.”), for pursuing a qui tam action against it. Defendant asserts counterclaims for tortious interference with prospective economic advantage, malicious prosecution and prima facie tort. Plaintiff moves to dismiss the counterclaims in the Amended Answer (“Counterclaims”) under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Plaintiff's motion to dismiss is granted in part and denied in part.
The following facts are taken from the Counterclaims and assumed to be true for the purposes of this motion. See Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt, 843 F.3d at 566 (2d Cir. 2016).
Plaintiff worked for Todres & Co., a public accounting firm, from October 2009 to May 2013. Ortiz was a difficult employee. He repeatedly demanded salary increases, complained that he was not reimbursed for certain incidental costs, violated client confidences, and performed work for his own clients without the permission or knowledge of his employer. Ortiz quit his job in May 2013 when he requested and was denied a salary increase.
In March 2015, Ortiz filed a qui tam complaint against Todres & Co., its managing partner, Michael Todres (“Todres”) and Todres & Co.'s audit client, the New York College of Health Professions (“NYCHP”), alleging that the three had engaged in financial fraud, made false statements and material misrepresentations, and engaged in other misconduct in order to obtain federal education funds for NYCHP. The qui tam complaint also alleges that Ortiz confronted Todres about anomalies in NYCHP's financial statements in early 2013, and dissociated himself from work with NYCHP when Todres attempted to silence him. Ortiz knew these allegations were false and lacked any evidentiary basis, but made them anyway “for the sole purpose of causing harm, damage and injury to” his former employer. While investigating the allegations, the government served a Civil Investigative Demand (“CID”) on Todres & Co. and NYCHP. NYCHP was forced to retain attorneys and respond to the CID, which caused NYCHP to fire Todres & Co. after a seven-year business relationship.
In March 2017, the government declined to intervene in the qui tam claims. In July 2017, Ortiz voluntarily dismissed the qui tam claims without prejudice. Ortiz now alleges only that he was wrongfully terminated by Todres & Co. in retaliation for making allegations of misconduct concerning the NYCHP audit.
Todres & Co. asserts three counterclaims against Ortiz: tortious interference with prospective economic advantage, malicious prosecution and prima facie tort. Ortiz moves to dismiss these counterclaims.
“A motion to dismiss a counterclaim is evaluated under the same standard as a motion to dismiss a claim in a complaint.” Dentsply Int'l Inc. v. Dental Brands for Less LLC, No. 15 Civ. 8775, 2016 WL 6310777, at *2 (S.D.N.Y. Oct. 27, 2016) (citing Keep on Kicking Music, Ltd. v. Hibbert, No. 15 Civ. 7464, 2016 WL 4386047, at *2 (S.D.N.Y. Aug. 17, 2016)). On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party, Trs. of Upstate N.Y. Eng'rs Pension Fund, 843 F.3d at 566, but gives “no effect to legal conclusions couched as factual allegations, ” Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017). To withstand a motion to dismiss, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In deciding a Rule 12(b)(6) motion, the court is limited to reviewing the relevant pleading, any documents attached to that pleading or incorporated in it by reference, any documents heavily relied upon by the pleading as to their “terms and effect” and which are therefore integral to the plaintiffs allegations even if not explicitly incorporated by reference, and facts of which the court may take judicial notice. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
Ortiz's motion to dismiss is denied as to Todres & Co.'s counterclaim for tortious interference with prospective economic advantage and granted as to the company's counterclaims for malicious prosecution and prima facie tort.