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Police failure to show victim more than one suspect photo leads to dismissal of charges

CIRCUIT COURT — Stalking and indecent exposure charges against a Massachusetts man who regularly spends time at his family home in Gilmanton were dismissed by a 4th Circuit Court judge Monday after he ruled the out-of-court identification method use by police was faulty.

David Busa, 59, had been accused by a neighbor of standing in front of her house and exposing himself.

The woman called the police and told them she knew Busa's late father and that she thought the man in front of her house was his son. She said she could identifying him if she had a photo.

Police interviewed Busa that night and described him as agitated. The next day, police returned to Busa's home and he agreed to be photographed.

In a motion to bar in-court and out-of-court identifications filed in the 4th Circuit Court Laconia Division, Busa, through his attorney Jarred Bedrick, argued that her initial photo identification of him was suggestive and tainted because Busa's photo was the only photo she was shown.

Bedrick argued that there were no exigent circumstances that existed to prevent the police from procedurally including Busa's photograph in a photographic lineup and have the woman identify him.

In her statement to police, the woman also said "I think this is my neighbor..." and that she "believed it was her neighbor..."

The court agreed and dismissed the charges.

Busa pleaded no contest to one count of trespassing, was found guilty, and ordered to pay a $1,000 fine — suspended in lieu of one year's good behavior. He is also ordered to stay away from the woman and her property.

Last Updated on Wednesday, 22 October 2014 11:19

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Laconia judge improvises to make up for lack of mental health court

CIRCUIT COURT — For about one-half hour every Tuesday, about 15 people quietly make their way up to Courtroom 1 of the 4th Circuit Court, Laconia Division.

They're on the way to "Compliance Court" — what presiding Judge Jim Carroll refers to as his own version of mental health court.

"For some it's pretrial, for some it post convictions, and for some it's bail conditions," Carroll explained from his chambers early yesterday morning.

For the participants, Compliance Court means checking in weekly with the judge and providing documentation that he or she is obeying the recommendations of his or her mental health provider and/or probation officer.

In reality, explained Carroll, some courts use the probation and parole departments exclusively for this function.

"We're willing to step up and use our resources," he said.

Belknap County does not have a sanctioned mental health court although there is one in Keene in Cheshire County that began in 2001 and was the first of its type in the state.

Like the Recovery or Drug Court in Belknap County, in Keene the Mental Health Court provides for alternatives to incarceration to enhance support for mental health issues that can lead to substance abuse and criminality. The goals are to enhance justice and public safety, reduce recidivism, and use motivational enhancement techniques for people with mental health issues.

In a recent case, Carroll chose Compliance Court for a man who was accused of criminal threatening with a deadly weapon. Although the prosecution had asked for $10,000 cash-only bail, during the bail hearing Carroll learned the accused was a client of Genesis Behavioral Health, had no criminal record, and has missed an appointment because his counselor was sick. He was out of medication.

As part of his bail conditions, the man was ordered to go to Genesis that day, meet with his counselor, get back on his medication and bring documentation back to the court that he had done what Carroll asked.

Since then, he has had weekly meetings with his counselor and is not incarcerated. He has had no encounters with the police and reports regularly in person to the court.

Many of the people who are ordered into Compliance Court are from Laconia and prosecutor Jim Sawyer said yesterday that while the program can't solve all of the mental health issues, participation in it is part of the solution.

"It's not a magic bullet," said Sawyer. "but I think it adds some structure to their lives."

Sawyer estimates about half of the people participating in Compliance Court have cases that he is prosecuting and their participation is part of their bail conditions.

In addition, because participation is part of a bail condition, if there is any violation or non-compliance, Judge Carroll can incarcerate them on a breach of bail violation.

Sawyer said compliance with mental health orders can make a big difference in how he chooses to prosecute as well. He said if someone is complying with all of the terms of their bail orders and seem to be gaining something positive from mental health counseling and Compliance Court, it can work to their benefit in terms of his decision on how to prosecute their case.

Judge Carroll said he has two things he considers under the law when setting bail — whether or not a person is a flight risk and whether or not the person presents a danger to the community or him or herself.

While he rarely sees the flight risk, he said wrestling with keeping the community safe and still getting help for those who need mental health assistance is why he started the Compliance Court.

He said he knows there are no mental health services for people who are incarcerated while awaiting trial, so by keeping a few of them out of jail, giving them the structure they need to get the mental health help they need, he's optimistic that because of compliance courts that the final outcomes will be better for all.

Last Updated on Wednesday, 22 October 2014 11:15

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State said to be looking to 'formalize' arrangemetns with homeowners who have been using railroad right-of-ways

MEREDITH — At a workshop yesterday, the Board of Selectmen declined to comment on a proposal by the New Hampshire Department of Transportation (DOT) to lease railroad property owned by the state to the Needle Eye Association in order to construct a pedestrian crossing of the track, maintain a boat dock and provide access to Lake Winnipesaukee.

The state Council on Resources and Development will consider the proposal at a meeting on November 13.

For many years the DOT was permitted to lease waterfront property within the railroad right-of-way to abutting landowners to afford them access to the water. However, in 2007 the Legislature restricted the purpose of selling or leasing railroad properties to "continued operation of a railroad, or other public use."

At the same time, the Legislature addressed the circumstances of owners of developed residential lots adjacent to railroad properties on the shores of public waters. The DOT was authorized to lease the state-owned waterfront for the private use of those adjacent homeowners, who applied for a building permit or constructed a concrete foundation before January 1, 2011, so long as their use of the land did not interfere with railroad operations.

In correspondence, Patrick Herlihy, director of the Division of Aeronautics, Rail and Rransit at the DOT, explained that the Needle Eye Association owns a 17,400-square-foot corridor that serves as a right-of-way to the waterfront for residents of the subdivision. At an unknown time, members of the association built a dock on the railroad property. Herlihy said that the DOT is willing to lease between 50 feet and 300 feet of shorefront at the edge of the railroad right-of-way provided the association constructs and maintains a crossing with appropriate signage to alert pedestrians.

Selectman Peter Brothers told the board that he encountered similar situations while working at Meredith Village Savings Bank. "It's all about finding revenue," he remarked. He explained that after restricting leases of state-owned waterfront, the DOT is taking stock of such land, which has been used by adjacent property owners without leases — in cases for many years — and entering formal arrangements with them.

Brothers said that since no new development is planned for the property, apart from the pedestrian crossing, there was no reason for the Selectboard to comment.

Last Updated on Tuesday, 21 October 2014 12:57

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'Tipping fee' hike in Laconia will mean higher trash disposal rates for Gilford residents

GILFORD — For the second time in two years, selectmen are planning to increase the fees collected for solid waste to help offset the town's subsidy of trash disposal.

Town Administrator Scott Dunn said the town plans on raising the amount collected from residents from $30 per ton to $45 per ton. He said this should raise the revenue to the town by about $75,000.

Solid waste or garbage collection costs can be broken down into three-parts: the cost of getting the garbage to the Laconia Transfer Station, the cost of getting the garbage from Laconia to the Wheelabrator facility in Penacook, and the cost of incinerating it.

In Gilford, individual residents bear the full expense of getting the garbage to Laconia. The town doesn't have a transfer station or curbside pickup and residents either take their garbage to the Laconia station or pay a private trash hauler to take it.

The costs of transporting the garbage to Penacook and disposing of it is currently $66.80 per ton and is called a tipping fee. This fee is projected to increase to about $70 for the calender year 2015 said Dunn.

The town of Gilford pays the upfront costs to Laconia and a portion of the revenue collected from the sale of coupons to residents who haul their own or by haulers who pay by the ton to dump their loads is returned to the town.

The town disposes of about 5,000 tons of trash per year. For accounting purposes, the town budgets $350,000 annually as an expense and creates a revenue offset for the money returned to Gilford by Laconia once the fees are paid.

If the town raises its fees for disposal at the Laconia Transfer Station, Dunn said it would mean that the town will be subsidizing about 50-percent of the costs instead of the 67 percent it currently subsidizes.

When the board broached the subject last year, Public Works Director Sheldon Morgan said it was tantamount to shifting it to more of a user fee and less of a property tax.

"Either way, someone will pay the bill," he said.

Last year, there was some strong push back from some residents who said that garbage collection is one of the key functions of local government and the town should be paying for it through property taxation.

Their fear was the private haulers would use the rate increase as an excuse to increase their rates and trash disposal would ultimately cost residents and taxpayers alike more in the long run.

Last Updated on Tuesday, 21 October 2014 12:16

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