Great Barrington's Magadini gets 30 days on trespass charge


GREAT BARRINGTON — Just before David Magadini was led off to a holding cell on Thursday morning, he was addressed by his attorney.

"David do you know what's happening?" Jed Hall asked.

"I'm going to jail," Magadini replied.

"But don't worry," Hall said. "I'll take care of your cart."

He was referring to Magadini's grocery cart, parked outside Southern Berkshire District Court, which is filled with, among other things, plastic bags, clothes and empty soda bottles.

Magadini, 70, and homeless by choice, was sentenced on Thursday to 30 days in the Berkshire County House of Correction for violating a "no trespassing" order.

Magadini, despite having a home on which he pays taxes, has squatted for years in various local businesses or public buildings overnight or during inclement weather. Several "no trespass" orders have been filed with the police department, effectively banning him from those locations.

On Thursday, Judge Paul Vrabel, let stand a 30-day sentence handed down in 2014 by former Judge Fredric Rutberg. In all, Magadini was given seven concurrent 30-day sentences on trespassing charges incurred in 2013 and 2014.

Magadini appealed those sentences to the state Supreme Judicial Court in Boston, where his attorney employed the necessity defense, arguing his client could not be charged with trespassing on private property, especially during winter months, when no other option for shelter was available.

The appeals court returned those cases to district court, ruling that the on six of those cases, the jury should have been given instructions about the necessity defense. It left intact his conviction on the remaining charge.

On Thursday, Vrabel scheduled new trials the six overturned cases and upheld Rutberg's original 30-day sentence on the seventh charge, which took place in June 2014, when presumably there were more options for shelter.

"Looking at this case, I see no reason to overturn Judge Rutberg's decision," he said, adding that he would waive all fees and court costs incurred by Magadini in light of his jail sentence.

Vrabel also set five separate jury trial dates to address a total of 10 new trespassing violations at various businesses around Great Barrington. These dates are scheduled on Feb. 27, March 7, March 21, March 28 and April 4. All will be in Central Berkshire District Court in Pittsfield.

Hall suggested the sentence was harsh.

"My client just turned 70 last month," he said. "And I have concerns about his stay in the House of Correction."

"Well, I don't," Vrabel replied.

Hall then requested a date for a motion hearing, saying he planned to file motions to dismiss several of the new charges.

"I have concerns about several of these charges," Hall said. He pointed out that if the court upheld any of the motions, there might be fewer trials.

"No, we're not going to do that," Vrabel said. "The government wants us to move this along, and we're going to move this along. These matters are all going to trial. We will consider your motions at trial. If they are successful, we'll deal with it then."

Contact Derek Gentile at 413-496-6251.


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