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-743
COMMONWEALTH
vs.
GABRIEL CABAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The probationer, Gabriel Caban, appeals from an order
revoking his probation based on a finding that he committed
assault and battery on a family member, his mother. On appeal,
Caban first argues that he was given improper notice of the
alleged violation and that the clerk-magistrate at his initial
violation hearing abused her discretion by relying on multilevel
hearsay. He then argues that the Superior Court judge at the
final violation hearing abused her discretion by relying on
multilevel hearsay and that use of this hearsay violated his
confrontation rights. Seeing no prejudicial error or abuse of
discretion at either stage, we affirm. Background. Caban began serving a three-year term of
probation in October 2021. In May 2023, Caban received a notice
of an alleged probation violation which stated the basis as "New
Arrest BMC Dorchester District Court -- A@B Family/Household
Member." A clerk-magistrate held an initial hearing at which a
probation officer testified that Caban's mother had told State
troopers that Caban had come home drunk, kicked in her door,
grabbed her by the arms, and shaken her violently. Caban argued
to the clerk-magistrate that he had not been arraigned (and,
implicitly, that he had not been arrested) on any charge of
assault and battery on a family or household member. But he
agreed that the probation department could seek to revoke his
probation based on criminal conduct even if he had not been
arraigned for that conduct. The clerk-magistrate found probable
cause of a violation and ordered Caban held without bail until a
final violation hearing.
In June 2023, that hearing was held, and State Trooper
Cynthia Pham testified. She stated that she had interviewed
Caban's mother with the assistance of the mother's social
worker, who spoke both Spanish and English and served as their
interpreter. Trooper Pham also observed the mother's home where
the alleged events occurred and assisted the mother in obtaining
a restraining order against Caban. Trooper Pham, who was
present at the mother’s restraining order hearing, recounted the
2 mother's testimony under oath at the restraining order hearing,
as translated by a court-certified interpreter, that her son had
come home drunk and shaken her violently. Trooper Pham further
testified that a restraining order had issued. From the
trooper's testimony, the judge found the mother's hearsay
statements reliable and then found, by a preponderance of the
evidence, that Caban had violated his probation by assaulting
his mother. The judge revoked Caban's probation and imposed a
sentence of incarceration.
Discussion. 1. Notice and initial violation hearing.
Caban argues that his due process rights were violated at the
initial violation hearing because he was not given sufficient
notice of the alleged probation violation and because the clerk-
magistrate abused her discretion in finding probable cause based
on unreliable hearsay. We conclude that these arguments do not
entitle Caban to relief.
Caban does not dispute that he received a notice of an
alleged probation violation; rather, he argues that the stated
basis of the violation -- a new arrest for assault and battery
on a family member -- was inadequate where he had not, in fact,
been arrested or arraigned on such a charge. In determining the
adequacy of a violation notice, we inquire whether the defendant
was adequately informed of the alleged violation "so as to be
3 able to prepare a meaningful defense." Commonwealth v.
Streeter, 50 Mass. App. Ct. 128, 131 (2000).
During the initial hearing, Caban acknowledged that his
mother had sought 1 a restraining order against him, alleging that
he "kicked in her door and violently shook her by the arms."
Caban further agreed "one hundred percent" that a probation
violation hearing could proceed based on alleged criminal
conduct regardless of whether he had been arraigned. See Rubera
v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any conduct by
a person on probation which constitutes a violation of any of
the conditions of his probation may form the basis for the
revocation of that probation" [emphasis added]).
Caban also alerted the clerk-magistrate to multiple
defenses that he anticipated raising at a final hearing,
indicating that he was able to prepare meaningfully.
Furthermore, Caban did not (and does not now) claim that he was
prejudiced by the notice's erroneous reference to an arrest,
rather than an incident reported to police. Under these
circumstances, the error in the notice does not entitle Caban to
any relief.
1 At the final hearing, Caban appeared to agree that the restraining order had issued. Whether an order issued is not essential to our decision.
4 We are similarly unpersuaded that Caban suffered any
prejudice from the reliance on hearsay to find probable cause.
Caban later received a final hearing at which the judge took
additional evidence, concluded by a preponderance of the
evidence that Caban violated the conditions of his probation,
and revoked his probation. He then received credit against his
sentence for the time he spent in custody following the initial
hearing. Because we conclude infra that the judge did not err
or abuse her discretion in finally revoking Caban's probation,
and because he received credit for the time served between the
two hearings, his claim that the initial probable cause
determination was based on unreliable hearsay is now moot. Even
if there was error, he would not be entitled to any additional
relief. See Lynn v. Murrell, 489 Mass. 579, 583 (2022) (case
moot where "a ruling from this court on the issues that [the
appellant] raises would offer no additional relief and would not
alter either party's legal position"). Cf. Commonwealth v.
Huggins, 84 Mass. App. Ct. 107, 109-110 (2013) ("Because the
defendant went to trial and was found guilty, there is no basis
for a claim of prejudice resulting from a pretrial determination
of probable cause").
2. Final violation hearing. Caban further argues that the
judge at the final violation hearing abused her discretion by
relying on uncorroborated multilevel hearsay. He argues that
5 there was no good cause to dispense with the testimony of his
mother or her social worker and that to find a violation based
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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-743
COMMONWEALTH
vs.
GABRIEL CABAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The probationer, Gabriel Caban, appeals from an order
revoking his probation based on a finding that he committed
assault and battery on a family member, his mother. On appeal,
Caban first argues that he was given improper notice of the
alleged violation and that the clerk-magistrate at his initial
violation hearing abused her discretion by relying on multilevel
hearsay. He then argues that the Superior Court judge at the
final violation hearing abused her discretion by relying on
multilevel hearsay and that use of this hearsay violated his
confrontation rights. Seeing no prejudicial error or abuse of
discretion at either stage, we affirm. Background. Caban began serving a three-year term of
probation in October 2021. In May 2023, Caban received a notice
of an alleged probation violation which stated the basis as "New
Arrest BMC Dorchester District Court -- A@B Family/Household
Member." A clerk-magistrate held an initial hearing at which a
probation officer testified that Caban's mother had told State
troopers that Caban had come home drunk, kicked in her door,
grabbed her by the arms, and shaken her violently. Caban argued
to the clerk-magistrate that he had not been arraigned (and,
implicitly, that he had not been arrested) on any charge of
assault and battery on a family or household member. But he
agreed that the probation department could seek to revoke his
probation based on criminal conduct even if he had not been
arraigned for that conduct. The clerk-magistrate found probable
cause of a violation and ordered Caban held without bail until a
final violation hearing.
In June 2023, that hearing was held, and State Trooper
Cynthia Pham testified. She stated that she had interviewed
Caban's mother with the assistance of the mother's social
worker, who spoke both Spanish and English and served as their
interpreter. Trooper Pham also observed the mother's home where
the alleged events occurred and assisted the mother in obtaining
a restraining order against Caban. Trooper Pham, who was
present at the mother’s restraining order hearing, recounted the
2 mother's testimony under oath at the restraining order hearing,
as translated by a court-certified interpreter, that her son had
come home drunk and shaken her violently. Trooper Pham further
testified that a restraining order had issued. From the
trooper's testimony, the judge found the mother's hearsay
statements reliable and then found, by a preponderance of the
evidence, that Caban had violated his probation by assaulting
his mother. The judge revoked Caban's probation and imposed a
sentence of incarceration.
Discussion. 1. Notice and initial violation hearing.
Caban argues that his due process rights were violated at the
initial violation hearing because he was not given sufficient
notice of the alleged probation violation and because the clerk-
magistrate abused her discretion in finding probable cause based
on unreliable hearsay. We conclude that these arguments do not
entitle Caban to relief.
Caban does not dispute that he received a notice of an
alleged probation violation; rather, he argues that the stated
basis of the violation -- a new arrest for assault and battery
on a family member -- was inadequate where he had not, in fact,
been arrested or arraigned on such a charge. In determining the
adequacy of a violation notice, we inquire whether the defendant
was adequately informed of the alleged violation "so as to be
3 able to prepare a meaningful defense." Commonwealth v.
Streeter, 50 Mass. App. Ct. 128, 131 (2000).
During the initial hearing, Caban acknowledged that his
mother had sought 1 a restraining order against him, alleging that
he "kicked in her door and violently shook her by the arms."
Caban further agreed "one hundred percent" that a probation
violation hearing could proceed based on alleged criminal
conduct regardless of whether he had been arraigned. See Rubera
v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any conduct by
a person on probation which constitutes a violation of any of
the conditions of his probation may form the basis for the
revocation of that probation" [emphasis added]).
Caban also alerted the clerk-magistrate to multiple
defenses that he anticipated raising at a final hearing,
indicating that he was able to prepare meaningfully.
Furthermore, Caban did not (and does not now) claim that he was
prejudiced by the notice's erroneous reference to an arrest,
rather than an incident reported to police. Under these
circumstances, the error in the notice does not entitle Caban to
any relief.
1 At the final hearing, Caban appeared to agree that the restraining order had issued. Whether an order issued is not essential to our decision.
4 We are similarly unpersuaded that Caban suffered any
prejudice from the reliance on hearsay to find probable cause.
Caban later received a final hearing at which the judge took
additional evidence, concluded by a preponderance of the
evidence that Caban violated the conditions of his probation,
and revoked his probation. He then received credit against his
sentence for the time he spent in custody following the initial
hearing. Because we conclude infra that the judge did not err
or abuse her discretion in finally revoking Caban's probation,
and because he received credit for the time served between the
two hearings, his claim that the initial probable cause
determination was based on unreliable hearsay is now moot. Even
if there was error, he would not be entitled to any additional
relief. See Lynn v. Murrell, 489 Mass. 579, 583 (2022) (case
moot where "a ruling from this court on the issues that [the
appellant] raises would offer no additional relief and would not
alter either party's legal position"). Cf. Commonwealth v.
Huggins, 84 Mass. App. Ct. 107, 109-110 (2013) ("Because the
defendant went to trial and was found guilty, there is no basis
for a claim of prejudice resulting from a pretrial determination
of probable cause").
2. Final violation hearing. Caban further argues that the
judge at the final violation hearing abused her discretion by
relying on uncorroborated multilevel hearsay. He argues that
5 there was no good cause to dispense with the testimony of his
mother or her social worker and that to find a violation based
solely on Trooper Pham's testimony violated his confrontation
rights. We are not persuaded.
Evidence that is inadmissible under the rules of evidence
may be admitted at a probation hearing if reliable. See
Commonwealth v. Durling, 407 Mass. 108, 118 (1990). To evaluate
whether the hearsay relied upon here had substantial indicia of
reliability, so as to serve as the sole evidence of a violation,
we turn to the factors listed in Commonwealth v. Hartfield, 474
Mass. 474, 484 (2016). These include the following:
"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."
Id. Not all of these criteria must be satisfied. See
Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). A
finding of a probation violation must be supported by a
preponderance of the evidence, and we review a decision to
revoke probation for abuse of discretion. See Commonwealth v.
Jarrett, 491 Mass. 437, 440 (2023).
6 For substantially the same reasons as the judge outlined in
her oral findings at the final hearing, we conclude that the
hearsay statements which the judge used in reaching her decision
had sufficient indicia of reliability:
"I find that the hearsay is substantially reliable upon hearing the testimony that [Caban's mother] went to the Dorchester District Court, participated in and signed an affidavit under the pains and penalties of perjury. This was reviewed with [Caban's mother] who assisted or drafted, with the assistance of an interpreter, the affidavit which was also reviewed by the trooper. The trooper was present throughout these proceedings. Very significantly to this Court's determination, among the other significant aspects of the case, that the trooper was present when a Spanish interpreter was brought in live to the Dorchester District Court. That [Caban's mother] was placed under oath and during a direct conversation and testimony with a District Court Judge, while under oath with a Spanish interpreter present, relayed the information that establishes the violation of probation currently before the Court."
Caban's mother reported her son's assault both to Trooper
Pham and in her testimony in the District Court, and her
accounts were substantially internally consistent. Some of the
details Caban's mother reported were corroborated by the
trooper's personal observations. That Caban's mother reported
the assault under oath, and through a court-certified
interpreter, to the District Court judge, who then issued the
restraining order, are circumstances that support the mother's
veracity. The Superior Court judge did not abuse her discretion
in ruling that the hearsay was substantially reliable.
7 Caban's arguments that his mother or the social worker
should have been called to testify are likewise unavailing. In
a violation hearing, the probationer has the right to confront
and cross-examine adverse witnesses unless good cause exists for
proceeding without a witness with personal knowledge of the
evidence. See Durling, 407 Mass. at 113. One way to satisfy
this good cause requirement is by presenting reliable hearsay.
See Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Because
the judge permissibly determined that the hearsay was reliable,
the judge's finding of a probation violation based on the
8 trooper's testimony was proper under Hartfield, 474 Mass. at
484, and did not violate Caban's confrontation rights. 2
Order dated July 24, 2023, revoking probation and imposing sentence affirmed.
By the Court (Massing, Sacks & Allen, JJ. 3),
Clerk
Entered: December 24, 2025.
2 While the reliability of the hearsay alone is sufficient to support this conclusion, see Negron, 441 Mass. at 691, the judge also found additional reasons supporting good cause for the mother not to testify: "[T]here are reasons why [Caban's mother] would not be before this Court including her difficulty with English, her demeanor which was testified to, as well as the existence, although we don't know the details, of a disability."
3 The panelists are listed in order of seniority.