Commonwealth v. Sean Janosky.

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-761

COMMONWEALTH

vs.

SEAN JANOSKY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this consolidated appeal, the defendant challenges (1) a

judge's order denying his motion pursuant to Mass. R. Crim. P.

30 (a), as appearing in 435 Mass. 1501 (2001), to correct a

sentence that was imposed after a Superior Court jury convicted

him of armed robbery with a firearm and he pleaded guilty to

being a second or subsequent offender;1 and (2) the same judge's

order denying, without an evidentiary hearing, his motion for

new trial based on developments in eyewitness identification

1The jury also convicted the defendant of unlawfully
carrying a firearm and he pleaded guilty to being an armed
career criminal. The trial judge subsequently dismissed the
firearm conviction on the ground that it was a lesser included
offense, and thus duplicative, of the armed career criminal
conviction. The jury found the defendant not guilty of armed
assault with intent to murder.
science since the defendant's trial and conviction in 2002.2

Concluding that the motion judge did not err by denying the

defendant's motion to correct an illegal sentence because the

defendant's sentence was not illegal, and discerning no error or

abuse of discretion in the judge's denial of the defendant's

motion for new trial, we affirm.

Background. On the morning of December 18, 1999, the

victim, Ronald Paul, was robbed by two men of diamonds and

jewelry at his jewelry business in Peabody. One of the men, who

was later identified as the defendant, had called the victim

earlier in the week to schedule a meeting, purportedly to buy a

diamond. The defendant also had been at the victim's office

five days earlier, spoken briefly with the victim's wife, Talya

Paul (Talya),3 who was the receptionist, and was observed by the

victim on the office security camera. Talya noticed that the

defendant was holding a briefcase and wearing a sweater and

three-quarter length coat. His hair was gelled and sticking

"straight up." He had blue eyes and white skin. Her

2 The defendant also claimed ineffective assistance of his
trial counsel and first appellate counsel but does not make that
argument on appeal. Accordingly, we need not address it here.

3 Because the victim and his wife share a surname, we use
her first name to avoid confusion.

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interaction with the defendant that day lasted twenty to thirty

seconds.

When the defendant arrived on the morning of the robbery,

he seated himself in front of the victim's desk. The victim sat

at his desk, with his open safe behind him. The other man,

later identified as Mark Bova, sat on a couch by the wall. The

victim and the defendant had a twenty-minute conversation about

the defendant's potential diamond purchase. The victim began to

show the defendant some diamonds, but became nervous and told

the defendant that he did not believe he had any suitable

diamonds. The defendant then pulled out a gun, stood, and

pointed the gun at the victim's chest, about six to eight inches

away. In response, the victim stood, raised his hands, and

screamed. The victim's hand bumped the defendant's arm and the

gun went off. After a brief struggle with the defendant, the

victim ran to a downstairs office and yelled that he had been

robbed and to call the police. He then hid behind a tree

outside and watched as the defendant and Bova left the building

and got in a car driven by a third man.4 When the victim

4 Police officers believed the third man to be John Pedoto,
Jr., but were unable to locate any physical evidence linking
Pedoto to the crime. Their questioning of Pedoto yielded the
defendant's name as the armed participant in the robbery.
Pedoto died prior to the case going to trial. See Commonwealth
v. Janofsky, 68 Mass. App. Ct. 1112 (2007).

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eventually returned to his office with the police, he noticed a

"hole" in his safe. He ultimately determined that $30,000 to

$40,000 in loose diamonds and finished jewelry had been stolen.

The victim described the defendant as having short, very

blonde hair and a pale face. He was wearing a brown ribbed

turtleneck that came up underneath his chin and an outer coat.

He had light-colored, possibly blue, eyes, his eyebrows were a

darker brown than his hair, and he was wearing a Swiss Army

watch. The victim described Bova as having black hair, combed

but messy, and wearing a black leather bomber-style jacket.

Bova never became involved in the conversation between the

victim and the defendant, but instead alternated between

watching the victim and looking down the hallway toward the

vestibule.

About two weeks after the robbery, on January 3, 2000, the

victim identified the defendant from a photographic array.

Talya viewed the same array but was unable to identify anyone.

On January 5, 2000, the police arrested the defendant and

obtained a search warrant for his residence, where they

recovered a brown ribbed turtleneck sweater. The next day, the

victim identified the sweater as the one worn by the robber with

the gun. On February 15, 2000, Talya identified the defendant

from a different photo array as the person she had seen at the

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office five days before the robbery. Finally, on March 10,

2000, the victim and Talya participated in a lineup

identification procedure. The victim identified the defendant,

but Talya selected someone else.

In support of his motion for new trial, the defendant

submitted a lengthy and detailed affidavit from an expert on

eyewitness identification. The expert discussed the

unreliability of eyewitness testimony and opined about the

suggestiveness of the photo arrays and lineups shown to the

victim and Talya.5

Discussion. 1. The motion to correct illegal sentence.

The defendant first contends that he was sentenced illegally by

the trial judge and that a different judge (motion judge) erred

by denying the defendant's motion more than twenty-two years

later to correct his "illegal" thirty to forty year State prison

sentence. We disagree.

Massachusetts Rule of Criminal Procedure 30 (a) provides

that a prisoner may "file a written motion requesting the trial

judge to . . . correct the sentence then being served upon the

ground that the confinement or restraint was imposed in

violation of the Constitution or laws of the United States or of

5 The defendant's expert opined about the reliability of the
identification of the sweater, but the defendant does not press
that issue on appeal, and therefore we do not address it.

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the Commonwealth of Massachusetts." "An illegal sentence is one

that is in excess of the punishment prescribed by the relevant

statutory provision or in some way contrary to the applicable

statute" (quotation and citation omitted). Commonwealth v.

Walters, 479 Mass. 277, 280 (2018).

Here, the defendant argues that his sentence was illegal

because (1) he was not convicted at trial of armed robbery with

a firearm and thus could not be sentenced as a subsequent

offender for that crime; and (2) the predicate offense for his

subsequent offender plea did not qualify as a prior conviction

of armed robbery with a firearm. However, these are challenges

to the validity of the defendant's conviction as a subsequent

offender, not the legality of the concomitant sentences.6

Although the armed robbery statute mandates minimum

sentences based on certain predicate acts, a judge may impose on

any armed robber a sentence of "imprisonment . . . for life or

for any term of years." G. L. c. 265, § 17.7 Therefore, the

6 The distinction we draw here is neither trivial nor
pedantic. The proper course for such a challenge would have
been for the defendant to bring his claim in a motion to
withdraw his guilty plea, so that the factual record could have
been developed regarding whether "it appears that justice may
not have been done." See Mass. R. Crim. P. 30 (b), as appearing
in 435 Mass. 1501 (2001).

7 Pursuant to G. L. c. 265, § 17, "Whoever, being armed with
a dangerous weapon, assaults another and robs, steals or takes
from his person money or other property which may be the subject

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trial judge's sentence of from thirty to forty years in State

prison (well above any minimum sentence imposed for armed

robbery under any of the sentences of G. L. c. 265, § 17) was a

lawful sentence. The motion judge did not err by denying the

defendant's motion to correct this sentence.

2. The motion for new trial. a. Developments in

eyewitness identification science. The defendant argues that he

should have been granted a new trial because advances since 2002

in scientific knowledge concerning the reliability of eyewitness

testimony cast real doubt on his conviction.

"[W]e review the denial of a motion for a new trial for 'a

significant error of law or other abuse of discretion.'"

Commonwealth v. Diaz, 100 Mass. App. Ct. 588, 592 (2022),

quoting Commonwealth v. Duart, 477 Mass. 630, 634 (2017), cert.

denied, 584 U.S. 938 (2018). A judge "may grant a new trial at

any time if it appears that justice may not have been done."

of larceny shall be punished by imprisonment in the state prison
for life or for any term of years; provided, however, that any
person who commits any offence described herein while masked or
disguised or while having his features artificially distorted
shall, for the first offence be sentenced to imprisonment for
not less than five years and for any subsequent offence for not
less than ten years. Whoever commits any offense described
herein while armed with a firearm, shotgun, rifle, machine gun
or assault weapon shall be punished by imprisonment in the state
prison for not less than five years. Any person who commits a
subsequent offense while armed with a firearm, shotgun, rifle,
machine gun or assault weapon shall be punished by imprisonment
in the state prison for not less than [fifteen] years."

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Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).

This allows a judge, "in rare cases . . . to look beyond the

specific, individual reasons for granting a new trial to

consider how a number of factors act in concert to cause a

substantial risk of a miscarriage of justice and therefore

warrant the granting of a new trial." Commonwealth v. Rosario,

477 Mass. 69, 77-78 (2017).

The defendant contends, based on his expert's affidavit,

that there were a number of factors that "undermined the

reliability of the identification procedures in this case." He

appears to argue that developments in eyewitness science since

the trial in this case make the identification issues cited by

his expert "newly discovered evidence." See Commonwealth v.

Mercado, 495 Mass 763, 766-767 (2025).

We agree with the motion judge that the Commonwealth's case

was sufficiently strong that any such advances in scientific

knowledge would not have had a meaningful impact on the jury's

decision-making in this case. See Commonwealth v. Eagles, 491

Mass. 210, 215-217 (2023) (motion for new trial properly denied

where scientific advances would likely have made inculpatory

evidence inadmissible at trial, but that evidence was not a real

factor in jury's calculation of evidence). The victim had ample

opportunity to observe the defendant before the crime, as the

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two spoke for about twenty minutes with only the width of the

victim's desk separating them. He also watched the defendant

leave the building and get into a car after the crime. The

victim provided a detailed description of the defendant and the

getaway vehicle. He then unequivocally identified the defendant

in the first photo array a couple weeks after the robbery and

identified him again in a lineup several months later. The

victim's identification of the defendant as the armed robber was

supported by other evidence, including (1) a scrap of paper

found in Pedoto's car with the name "Shawn" and a phone number

registered to "Ann Janosky" at the defendant's residence;

(2) the fact that a brown ribbed sweater consistent with the one

worn by the armed robber was found at the defendant's residence;

and (3) Talya's identification of defendant in the second photo

array.

We are not persuaded by the defendant's argument that the

use of a firearm in this case impacted the credibility of the

victim's identification. The defendant's expert opined that,

"'weapon focus' can . . . impair a witness's ability to make a

reliable identification and describe what the culprit looks like

if the crime is short in duration." However, as discussed, the

victim in this case interacted with the defendant for a

significant period of time prior to the "short duration" of the

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robbery after the introduction of the firearm. See Mercado, 495

Mass. at 767-768 (research on stranger eyewitness identification

inapplicable to witness who spent time with defendant prior to

shooting). Finally, the victim and Talya were cross-examined

about their observations of the defendant, the descriptions they

gave to the police, and the quality of the identification

procedures utilized by police; and trial counsel challenged the

identification procedures and the reliability of the

identifications during his closing argument. See Commonwealth

v. Ayala, 481 Mass. 46, 64 (2018) (new trial not warranted even

in absence of eyewitness identification expert testimony where

defense counsel vigorously cross-examined witness regarding

reliability of identification and argued unreliability of

identification in closing). We thus discern no error in the

motion judge's conclusion that a new trial not warranted even in

absence of eyewitness identification expert testimony.

b. Denial of request for evidentiary hearing. "Whether to

hold an evidentiary hearing is a decision squarely within the

judge's discretion, and we review the decision for an abuse of

discretion." Commonwealth v. Barry, 481 Mass. 388, 401 (2019).

A judge may properly deny a motion for a new trial without an

evidentiary hearing "if no substantial issue is raised by the

motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as

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appearing in 435 Mass. 1501 (2001). "In determining whether a

substantial issue meriting an evidentiary hearing under rule 30

has been raised, we look not only at the seriousness of the

issues asserted, but also to the adequacy of the defendant's

showing on the issue raised" (quotation and citation omitted).

Commonwealth v. Holbrook, 482 Mass. 596, 606 (2019). "A judge

may also consider whether holding a hearing will add anything to

the information that has been presented in the motion and

affidavits." Commonwealth v. Goodreau, 442 Mass. 341, 348

(2004).

Here, the defendant's motion for a new trial was supported

by a lengthy and detailed expert affidavit that included

citations to numerous studies and learned treatises. The motion

judge found that there was nothing raised in the expert

affidavit that cast doubt on the identifications or their impact

at trial, particularly where the witnesses were cross-examined

on the issue and trial counsel forcefully argued the

unreliability of the identifications. We discern no abuse of

discretion in the judge's further determination that "[t]he

materials necessary . . . to make an informed decision

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. . . are contained within the written submissions of the

parties and the attached exhibits."

Order denying motion for new
trial affirmed.

Order denying motion to
correct illegal sentence
affirmed.

By the Court (Blake, C.J.,
Ditkoff & Brennan, JJ.8),

Clerk

Entered: July 29, 2025.

8 The panelists are listed in order of seniority.

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