Opinion
May 6, 1980.
John Cavicchi for the defendant.
John T. McDonough, Assistant District Attorney, for the Commonwealth.
1. Upon review of the record, we discern no abuse of discretion by the motion judge (the trial judge having recused himself from acting on the motion for a new trial) in denying the defendant's motion for a new trial based on newly discovered evidence. Such a motion is addressed to the sound discretion of the trial court judge. Commonwealth v. Dascalakis, 246 Mass. 12, 32-33 (1923). Commonwealth v. Robertson, 357 Mass. 559, 562 (1970). Commonwealth v. DeChristoforo, 360 Mass. 531, 542 (1971). Blaikie v. District Attorney for the Suffolk Dist., 375 Mass. 613, 618 (1978). Commonwealth v. Meuse, 3 Mass. App. Ct. 189, 192 (1975). Here the judge received affidavits in support of the motion for a new trial and held evidentiary hearings. He made detailed findings, in which he considered the reliability, admissibility and weight of the proffered new evidence, by which the defendant sought to establish that a proof of loss admitted in evidence in his trial for insurance fraud was not genuine. His disposition of the motion "is not to be reversed unless a survey of the whole case shows that his decision, unless reversed, will result in manifest injustice." Sharpe, petitioner, 322 Mass. 441, 445 (1948). Davis v. Boston Elev. Ry., 235 Mass. 482, 495-496 (1920). Commonwealth v. Robertson, supra at 562. Commonwealth v. DeChristoforo, supra at 542. Commonwealth v. Cook, 380 Mass. 314, 321 (1980).
2. The defendant has offered neither reasoning nor authority (see Mass. R.A.P. 16[a][4], as amended, 367 Mass. 921) to support his position that the trial judge committed error by disqualifying himself from acting on the motion for a new trial. It is entirely appropriate that a judge disqualify himself in a proceeding in which his impartiality might be questioned. See S.J.C. Rule 3:25, Canon 3(C), 359 Mass. 844 (1971).
Order denying motion for a new trial affirmed.