Commonwealth v. Matthew Davis.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-142

COMMONWEALTH

vs.

MATTHEW DAVIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the defendant was found

guilty of unlawfully carrying a firearm, and after a jury-waived

trial, he was found to have been previously convicted of a

"serious drug offense" and thus subject to a sentence

enhancement under G. L. c. 269, § 10G (a), the Massachusetts

Armed Career Criminal Act (ACCA). On appeal, the defendant

makes four arguments: (1) his motion to suppress the firearm

found in his car was erroneously denied; (2) there was

insufficient evidence that he constructively possessed the

firearm; (3) at the sentence enhancement trial, the judge

erroneously admitted identification evidence; and (4) the judge

erred in denying him sentencing credit for certain "dead time"
served in Federal custody. We affirm the judgment but reverse

the order on the defendant's motion for jail credits, vacate the

sentence, and remand the case for recalculation of the sentence.

1. Motion to suppress. Boston police officers patrolling

Columbia Road pulled over a car that was speeding and had

excessively-tinted windows. The officers, each with a body-worn

camera (BWC) activated, approached the car and found the

defendant in the driver's seat and a woman he identified as his

fiancé in the front passenger seat.1 As explained in more detail

infra, the officers eventually pat frisked the defendant,

performed a protective search of the car for weapons, and

located a firearm in a "fanny pack" on the floor behind the

front passenger seat. The defendant was arrested and charged

with, among other offenses, unlawfully carrying a firearm. The

defendant moved to suppress the fanny pack and firearm on the

ground that the car search was unjustified. After an

evidentiary hearing at which the officers testified and the BWC

footage was admitted, a judge denied the motion.

In reviewing a ruling on a motion to suppress, "we adopt

the motion judge's factual findings absent clear error,"

Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008), and

1 By the time of trial, the defendant and his fiancé were no
longer engaged. For clarity, we refer to her as his fiancé
throughout.

2
"conduct an independent review of his ultimate findings and

conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213,

218 (2002). We "may supplement a motion judge's subsidiary

findings with evidence from the record that is uncontroverted

and undisputed and where the judge explicitly or implicitly

credited the witness's testimony . . . so long as the

supplemented facts do not detract from the judge's ultimate

findings" (quotations and citations omitted). Commonwealth v.

Jones-Pannell, 472 Mass. 429, 431 (2015).

A Terry-type protective search of a vehicle for weapons is

justified if officers have reasonable suspicion, based on

specific and articulable facts, that a recent occupant is

"dangerous" and might access the vehicle to "gain immediate

control of weapons." Michigan v. Long, 463 U.S. 1032, 1048-1050

(1983), citing Terry v. Ohio, 392 U.S. 1, 21 (1968). See

Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020);

Commonwealth v. Darosa, 94 Mass. App. Ct. 635, 645 (2019).

Here, the defendant contends that the officers lacked such

reasonable suspicion. We are unpersuaded. The factors

supporting reasonable suspicion here included the defendant's

delay in pulling over after police activated their blue lights,

which police called a "slow roll"; police knowledge of his

pending charges involving assault with a firearm; and the

3
unusual position of the front seats in his car, which could

support an inference that he was hiding contraband.

a. Slow roll. The motion judge found that when the

officers activated their cruiser's blue lights, despite there

being "plenty of space for the [defendant's] car to pull over,"

the defendant did not do so immediately, but instead kept

driving, slowly and for a significant distance, before stopping.

The officers believed that the occupants were using this slow

roll in order to gain time to hide contraband.

The defendant first argues that the record does not support

the finding that he could have pulled over earlier. The

officers testified, however, that it was 12:30 A.M., traffic was

not heavy, Columbia Road is "a very wide street . . . two lanes

of traffic with a bike lane and a lane for cars to park on the

side of it [with] ample amount of room for a vehicle to pull to

the right of the road," and so "[t]here was no reason that [the

car] did not pull over right away."2 Yet the defendant continued

driving for at least a full city block.

The defendant further asserts that, because there were cars

in the parking lane, he could not pull over until he found space

2 From the BWC footage and other evidence at the hearing,
the judge could have found that the officer's description
referred to one half of Columbia Road, i.e., that in the
direction the defendant was driving, there were two travel
lanes, a bicycle lane, and a parking lane.

4
directly adjacent to the curb. But neither officer testified

that this was what they meant by failing to pull over, nor is it

what State law provides.3 And the officers were not required to

identify some specific location where the defendant could have

pulled over earlier. This case is unlike Commonwealth v.

Teixeira-Furtado, 474 Mass. 1009, 1011 (2016), cited by the

defendant, where "conclusory" police testimony that a car was

traveling at "a speed greater than reasonable," although it

"tracked the statutory language," was not based on any

"articulate[d] specific facts" and thus was insufficient to

support a traffic stop. Here, specific police testimony

supported the judge's finding that police reasonably believed

the defendant could have pulled over earlier, even if not

completely out of the right-hand travel lane.

The defendant also argues that his actions were "consistent

with simply looking for a safe place to pull over" and therefore

were not suspicious. But that a particular action may be

3 By statute, "upon the approach of any . . . police vehicle
. . . which is going to a fire or responding to call, alarm or
emergency situation, every person driving a vehicle on a way
shall immediately drive said vehicle as far as possible toward
the right-hand curb or side of said way and shall keep the same
at a standstill until such . . . police vehicle . . . has
passed" (emphasis added). G. L. c. 89, § 7A. Although the
defendant points out that stopping in a bicycle lane is
prohibited, this is subject to an "except[ion] in a case of
emergency." G. L. c. 89, § 4D.

5
"consistent with any number of innocent activities,"

Commonwealth v. Barreto, 483 Mass. 716, 721 (2019), does not

mean the action cannot contribute to reasonable suspicion.

"An officer does not have to exclude all the possible
innocent explanations for the facts in order to form a
reasonable suspicion [and we] do not examine each fact
known to [the officer] at the time of the stop in
isolation; instead [a court] view[s] the 'facts and
inferences underlying the officer's suspicion . . . as a
whole when assessing the reasonableness of his acts.'"

Isaiah I., 450 Mass. at 823, quoting Commonwealth v. Thibeau,

384 Mass. 762, 764 (1981).

The defendant next claims that the officers were required

to, but did not, testify to the specific training or experience

they relied on to conclude that the slow roll was a sign of an

attempt to hide contraband. For this the defendant cites the

statement in Commonwealth v. Matta, 483 Mass. 357, 366 n.8

(2019), that "ordinarily, when an officer relies on his or her

training and experience to draw an inference or conclusion about

an observation made, the officer must explain the specific

training and experience that he or she relied on and how that

correlates to the observations made." Yet in Matta, supra, it

was enough for an officer to testify "that in his experience

people carry unlicensed firearms in their waistband"; this

sufficed to allow "the fact that the defendant clutched his

waistband as he ran [to] be considered as part of the reasonable

6
suspicion calculus." Here, similarly, the officer testified

that in his experience, when a vehicle slow rolls on a street on

which there is nothing preventing the vehicle from pulling over

to the right, "it raises a red flag that someone may be trying

to conceal something in the vehicle." This had "occurred in the

past, in [the officer's] experience." Such testimony is little

different from that accepted in Matta.

Moreover, in the reasonable suspicion context no less than

when the question is the sufficiency of the evidence, "[a]n

inference, if not forbidden by some rule of law, need only be

reasonable and possible; it need not be necessary or

inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341

(1977). It requires no special training or experience, but

instead only common sense, to draw the permissible (even if not

required) inference that a person who continues to drive slowly

for at least a block after police activate their blue lights is

a person who is seeking to delay or avoid an interaction with

police. We therefore conclude that the defendant's slow roll

could properly be considered as contributing to reasonable

suspicion that the defendant was hiding a weapon or contraband

in the car.

b. Recent activity with firearms. The motion judge found

that the officers were aware, before the patfrisk of the car,

7
that the defendant had "an open firearms case involving

violence." One officer had run the defendant's board of

probation (BOP) record and learned that only two weeks earlier,

the defendant had appeared in District Court in connection with

"a domestic violence issue involving him brandishing a firearm."

The charges against the defendant included assault with intent

to murder, assault with a dangerous weapon, and threatening.

The defendant rightly asserts that "a suspect's criminal

record alone will not justify a patfrisk." Commonwealth v.

Garner, 490 Mass. 90, 93 (2022). Nevertheless, "[k]nowledge

that a suspect's criminal record includes weapons-related

offenses may factor into the reasonable suspicion calculus."

Id. at 92. Although the defendant here had not been convicted,

arrests may be considered in determining reasonable suspicion.

Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841-842 (2010).

We conclude that the officers' knowledge of the pending charges

contributed to reasonable suspicion that the contraband the

defendant was hiding was a firearm and that he might use it in a

dangerous manner.

c. Seat positions. The unusual, sharply reclined

positions of both the driver's and front passenger seats, as

shown in video and photographs introduced at the suppression

hearing, further contributed to reasonable suspicion that the

8
defendant had just hidden a weapon or contraband. Although the

officers did not testify that they considered this factor, and

the judge made no findings about it, the existence of reasonable

suspicion "is a question of law," one "that we can answer in the

first instance" where the subsidiary facts are undisputed.

Commonwealth v. Ford, 100 Mass. App. Ct. 712, 718-719 (2022).

Our inquiry is objective, focusing on what the officers

reasonably could have believed, rather than on their subjective

beliefs or motivations. See Commonwealth v. Buckley, 478 Mass.

861, 867 (2018); Commonwealth v. Santana, 420 Mass. 205, 208

(1995). We may supplement the motion judge's findings with

evidence from the record that is uncontroverted and undisputed,

Jones-Pannell, 472 Mass. at 431, and we may undertake an

independent review of video footage or other documentary

evidence in the record. Commonwealth v. Yusuf, 488 Mass. 379,

380-381 (2021); Commonwealth v. Tremblay, 480 Mass. 645, 646

(2018). We are "free to affirm a ruling on grounds different

from those relied on by the motion judge if the correct or

preferred basis for affirmance is supported by the record and

the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102

(1997).

Here, both the driver and front passenger seats were pushed

to the rear and sharply reclined backward to such an extent

9
that, it could reasonably be inferred, driving or riding in such

a seat would have been unnatural and uncomfortable. It could

further be reasonably inferred that the purpose of positioning

the seats in this manner was, first, to facilitate the driver's

placing of an object on the floor behind the passenger seat and,

second, to conceal that object from the view of someone outside

the car looking in. This factor further supports -- and, when

combined with the factors already discussed, establishes --

reasonable suspicion to pat frisk the car for a weapon.4 The

motion to suppress was properly denied.

2. Sufficiency of evidence of possession. The defendant

argues that the evidence at trial was insufficient to prove that

he constructively possessed the firearm found in the car he was

driving. We review to determine "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979). We keep in mind that

4 We therefore need not consider the parties' arguments
regarding whether reasonable suspicion could be based on
additional factors, such as the defendant's demeanor on this
occasion as compared to a prior interaction with one of the
officers, or one officer's belief that the defendant had an
unspecified "history with drugs and firearms."

10
inferences need only be reasonable and possible, not necessary

or inescapable. Beckett, 373 Mass. at 341.

Constructive possession requires proof beyond a reasonable

doubt that the defendant had "knowledge coupled with the ability

and intention to exercise dominion and control" of the

contraband (citation omitted). Commonwealth v. Brzezinski, 405

Mass. 401, 409 (1989). "Presence alone cannot show the

requisite knowledge, power, or intention to exercise control

over the firearm, but presence, supplemented by other

incriminating evidence, 'will serve to tip the scale in favor of

sufficiency.'" Commonwealth v. Albano, 373 Mass. 132, 134

(1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th

Cir. 1976). Such other incriminating evidence may be referred

to as a "plus factor." Commonwealth v. Ortega, 441 Mass. 170,

174 (2004), quoting Commonwealth v. Velasquez, 48 Mass. App. Ct.

147, 149 (1999).

Here, the plus factors include the slow roll and the

unusual seat positions, both of which were shown by trial

evidence. Both factors supported a reasonable inference that

the defendant was aware of and sought to conceal the firearm in

the car.5 Accordingly, we need not resolve the parties' dispute

5 Contrary to the defendant's argument, even if it was also
plausible that the defendant engaged in the slow roll solely to
find a safe place to pull over, the slow roll was not the only

11
whether it was also reasonable to infer that the defendant had

been wearing the fanny pack and reclined his seat to take it off

before being pulled over.

Another plus factor was the defendant's calm, unsurprised

demeanor when asked if he had a license to carry; he responded

that he did not and asked only if his fiancé was going to be

locked up. This permitted an inference that he knew of the

firearm in the car. That there could be other, less inculpatory

explanations for the defendant's attitude did not bar the jury

from considering it. See Beckett, 373 Mass. at 341.

Although the defendant did not own the car, but had merely

borrowed it from his uncle, the uncle testified that he had last

driven it a few days before the defendant's arrest, he had not

loaned it to anyone else since that time, and the firearm and

fanny pack were not his. The fiancé, likewise, testified that

the firearm and fanny pack were not hers. The jury could have

credited this evidence, which permitted, even if it did not

require, the inference that the firearm belonged to the

plus factor supporting a finding of constructive possession, and
thus was not by itself required to "bear the weight of proof
beyond reasonable doubt." Commonwealth v. Rodriguez, 456 Mass.
578, 583 (2010).

12
defendant. Taking the plus factors together, the evidence of

constructive possession was sufficient.6

3. Identification evidence. At the jury-waived ACCA

sentence enhancement trial, the Commonwealth sought to prove

that the defendant was the same Matthew Davis who, the evidence

showed, had been convicted in Federal court in 2009 of

possession of cocaine base with intent to distribute.7 "Mere

identity of name is not sufficient" for such purposes.

Commonwealth v. Koney, 421 Mass. 295, 302 (1995). The

Commonwealth therefore relied on the testimony of Boston police

Officer Michael O'Rourke, who participated in the 2008 warrant

arrest of a Matthew Davis for operating with a suspended

driver's license. During the booking that followed, that

Matthew Davis was searched and drugs were found, leading to the

Federal drug conviction. O'Rourke testified, over objection,

that he recognized the defendant in the courtroom at the ACCA

trial as the same person he had helped arrest in 2008. The

6 We therefore need not consider the parties' arguments
regarding other possible plus factors, such as the defendant's
changed demeanor since his last interaction with one of the
officers, his statement that he drove with tinted windows
because he did not want to be seen, and his "big step" away from
the car, cited by the Commonwealth as evidence of flight.

7 The defendant does not contest that this was a "serious
drug offense" under the ACCA, G. L. c. 269, § 10G (e).

13
defendant now challenges the admission of two aspects of

O'Rourke's testimony.

a. In-court showup identification. The defendant argues

that because O'Rourke had not identified him before the ACCA

trial as the same Matthew Davis he had helped arrest many years

earlier, O'Rourke's in-court identification of him was

unnecessarily suggestive and impermissible under Commonwealth v.

Crayton, 470 Mass. 228 (2014). In that case, the court held

that "[w]here an eyewitness has not participated before trial in

an identification procedure, [a court] shall treat the in-court

identification as an in-court showup, and shall admit it in

evidence only where there is 'good reason' for its admission."

Id. at 241. This rule "appl[ies] only to in-court

identifications of the defendant by eyewitnesses who were

present during the commission of the crime." Id. at 242. It

does not apply to "a witness who was neither a percipient

witness to the crime nor present at the scene of the crime."

Commonwealth v. Chin, 97 Mass. App. Ct. 188, 199 (2020). See

Commonwealth v. Collins, 470 Mass. 255, 265 (2014); Commonwealth

v. Galipeau, 93 Mass. App. Ct. 225, 232 (2018).

Here, because O'Rourke was not testifying as an eyewitness

to any crime committed by any Matthew Davis, Crayton did not bar

O'Rourke's in-court identification. O'Rourke did not witness

14
the traffic offense for which he helped arrest a Matthew Davis

in 2008, nor did he witness the defendant's possession of a

firearm that led to the present case. When Davis was booked

after the 2008 arrest, a booking officer found drugs on Davis's

person, and the possession of those drugs was the basis for the

2009 Federal conviction. But O'Rourke was not the booking

officer and was unsure whether he himself had witnessed the

discovery of the drugs -- initially testifying that he was, but

on cross-examination repeatedly saying, "most likely not." He

did "[n]ot . . . recall" being there.8 Crayton therefore does

not apply.

8 Even if O'Rourke happened to see the discovery of the
drugs, and even if that made him an eyewitness to a crime, there
was "good reason" for his in-court identification here.
O'Rourke having earlier participated in the warrant arrest, he
was "not identifying the defendant based solely on his or her
memory of witnessing the defendant at the time of the crime,
[and so] there is little risk of misidentification arising from
the in-court showup despite its suggestiveness" (emphasis
added). Crayton, 470 Mass. at 243. "'Good reason' might also
exist where the witness is an arresting officer who was also an
eyewitness to the commission of the crime, and the
identification merely confirms that the defendant is the person
who was arrested for the charged crime." Id. at 242. The
fortuity of O'Rourke's possible presence when the drugs were
found cannot logically create additional barriers to his making
an in-court showup identification of the defendant here as the
same person he had earlier helped arrest on the essentially
unrelated charge of operating with a suspended license. And the
defendant agrees in his appellate brief that "[b]ased on
[O'Rourke's] testimony, the judge could have found that the
person convicted in [F]ederal court was the same person Officer
O'Rourke arrested."

15
The defendant nevertheless points us to the gloss placed on

Crayton in Commonwealth v. Dew, 478 Mass. 304, 313 (2017), where

the court, quoting Crayton, 470 Mass. at 242, said: "A 'good

reason,' in this context, consists of circumstances where an in-

court identification is not material to a determination of guilt

or innocence, and serves merely to inform the jury that 'the

person sitting in the court room is the person whose conduct is

at issue.'" The defendant suggests that O'Rourke's in-court

identification of him here was material to his guilt or

innocence at his ACCA trial, and so there could be no "good

reason" under Crayton, supra.

Even if "good reason" were required here, however, Dew does

not aid the defendant. The point of the ACCA trial was not to

make "a determination of [Matthew Davis's] guilt or innocence"

of a serious Federal drug offense, Dew, 478 Mass. at 313, but

merely to determine whether the defendant here was the same

Matthew Davis who had already been found guilty of such an

offense in 2009.9 O'Rourke's testimony served merely to inform

the fact finder that the person in the courtroom at the ACCA

trial (the defendant) was the person whose conduct was at issue

9 Cf. Commonwealth v. Johnson, 447 Mass. 1018, 1019 (2006)
("statutory provisions [such as G. L. c. 269, § 10G, i.e., ACCA]
do not create independent crimes, but enhance the sentence for
the underlying crime").

16
in the 2009 Federal proceedings. Whether O'Rourke witnessed

that person possessing drugs was immaterial. Cf. Commonwealth

v. Matos, 95 Mass. App. Ct. 343, 350 (2019) (arresting officer's

in-court identification of defendant intended merely to show

that defendant was person officer arrested and person in booking

photo, not to show defendant was perpetrator).

We decline to give a literal interpretation to the language

in Dew, 478 Mass. at 313, suggesting that, if identification is

material to guilt or innocence, good reason cannot exist.

Identification is always material; it "is a key element in every

criminal trial," and its absence "require[es] acquittal."

Koney, 421 Mass. at 302. Interpreting Dew literally would thus

entirely nullify Crayton's "good reason" provisions.

Accordingly, the judge did not err or otherwise abuse his

discretion in allowing the in-court identification.10

10The defendant further suggests that, on this record, the
judge should not have allowed the identification because
O'Rourke's previous involvement with the arrest of a Matthew
Davis occurred fifteen years earlier, and "it was evident from
the officer's testimony that he did not remember what the
arrestee looked like." In this jury-waived trial, where Crayton
did not bar the identification, the passage of time and
O'Rourke's testimony about his memory of the arrestee's
appearance went to the weight of his identification, not its
admissibility. Regardless of what we might do were we finders
of fact, we do not second guess the judge's decision to credit
O'Rourke's testimony. Although the defendant's brief also
argues that the identification evidence was substantially more
prejudicial than probative, that argument was not made below,
and any abuse of discretion in that regard did not create a

17
b. Evidence of arrestee's birthdate. The defendant

challenges the admission of O'Rourke's testimony regarding the

birthdate of the Matthew Davis he arrested in 2008. O'Rourke

was initially unable to recall that information but testified

without objection that looking at a police report would refresh

his recollection. After viewing the report, he testified

without objection that his recollection was refreshed and then,

over objection, testified regarding the arrestee's year of birth

and then his exact date of birth. The defendant now argues, on

two grounds, that this testimony was not admissible as a present

recollection refreshed but instead was inadmissible hearsay:

(1) it was insufficiently "clear that . . . the witness [was]

testifying from present memory rather than reciting the contents

of the writing," Commonwealth v. Daye, 393 Mass. 55, 65 n.11

(1984); and (2) there having been no foundation laid that

O'Rourke ever knew the arrestee's birthdate, he should not have

been "allowed to refer to a paper to refresh his recollection

with reference to a matter about which he never had any

knowledge." Kaplan v. Gross, 223 Mass. 152, 156 (1916).

Even assuming arguendo that these particular objections

were preserved, any error was not prejudicial. The evidence

substantial risk of a miscarriage of justice, for the reason
stated immediately infra regarding social security numbers.

18
here included a certified copy of a Federal court record of the

2009 conviction, showing that the Matthew Davis at issue there

was born in 1988 and had a social security number ending in four

specified digits. The evidence also included a certified copy

of a 2023 Registry of Motor Vehicles (RMV) record for a Matthew

Davis, showing a 1988 birthdate and a social security number

ending in the same four digits. The RMV record also included a

color photograph of Matthew Davis, which the judge could have

found matched the appearance of the defendant in court before

him. Taken together, this was ample evidence that the defendant

was the same person convicted of the Federal drug offense. We

are confident that the admission of further evidence regarding

the month and day of birth of the person at issue in the Federal

proceeding had no or but very slight effect.

4. Dead time. At sentencing, the defendant filed a motion

for jail credits requesting credit for fifty-nine days of dead

time -- the period from December 17, 2022, to February 13, 2023,

-- that he spent solely in Federal pretrial custody for an

unrelated offense (1) that he allegedly committed after the

firearm offense at issue here, but (2) of which he was

ultimately acquitted before the trial in this case. The judge,

while allowing credit for time spent in custody on both the

Federal charge and the firearm charge simultaneously, denied

19
credit for the requested fifty-nine days spent solely in Federal

custody, on the ground that he had no authority to grant it.

On appeal, the defendant argues that under decisions such

as Commonwealth v. Milton, 427 Mass. 18, 23-25 (1998), the judge

did have such authority, and that, "in the interest of fairness,

[the defendant] should not be required to serve 'dead time'

[where he is] not banking time or getting double credit for

time." Williams v. Superintendent, Mass. Treatment Ctr., 463

Mass. 627, 632 (2012). The Commonwealth agrees. Based on our

independent review, see Commonwealth v. Poirier, 458 Mass. 1014,

1015 (2010), we agree as well.

Conclusion. The judgment is affirmed. The order on the

defendant's motion for jail credits is reversed, the sentence is

vacated, and the case is remanded for recalculation of the

sentence to include credit for fifty-nine days of dead time.

So ordered.

By the Court (Meade, Sacks &
Hodgens, JJ.11),

Clerk

Entered: March 31, 2025.

11 The panelists are listed in order of seniority.

20