Great Barrington — David Magadini’s 30-day jail sentence for seven counts of trespassing was stayed Monday (January 5) until January 29 pending appeal, according to the Berkshire District Attorney’s Office.
Since his September 29 jury of six trial in Central Berkshire District Court, Magadini has picked up two new charges of trespassing for violations in Great Barrington at both the Days Inn and the Post Office, according to Magadini’s attorney, Jedd L. Hall. A pretrial hearing for the two new charges is also scheduled for January 29.
In an interview conducted with him in the Mason Library, Magadini, who has adopted a homeless condition of living, explained he hasn’t been allowed in the Post Office since May 2013. His Post Office box, he said, expired that month. The Postmaster could not be reached for comment.
Magadini is not allowed at the Day’s Inn at the corner of Taconic Avenue and Main Street, either, he said. He has been a paying customer in the past, but has been refused there ever since: “I complained about the service,” involving “lightbulbs and a few odds and ends.” He said he also made a mistake when he sent the hotel evaluation card in the room to the main office. He wrote to the Selectboard, he said, asking them to impose a condition as part of the motel’s operating license, that they must serve everyone who asks for a room. The Selectboard, he said, claimed they never got his letter. Licenses were renewed at the end of December.
Two years ago, Magadini filed a complaint with the Selectboard, requesting that the Days Inn license be suspended because he had been refused a room. But during a subsequent hearing on the matter, the selectboard determined that the motel had declined Magadini a room because in previous incidents he had damaged rooms and left them in need of extensive cleaning. The board dismissed his complaint.
Magadini, 68, was set to serve his sentence in the House of Corrections from January 5 until February 5, but appeals attorney Joseph Schneiderman filed an emergency motion to continue the case until the end of the month and the prosecutor agreed. Attorney Hall explained that the stay would give Schneiderman time to review trial transcripts for accuracy and prepare the appeal, noting that appellate courts require transcripts.
Eight charges were brought by the Great Barrington Police Department from incidents that occurred between February and June of 2014. Magadini was convicted of separate occurrences of trespassing at Barrington House, SoCo Creamery, and 4 Castle Street.
Magadini, who uses public spaces in town as his addresses, was found not guilty on one charge of trespassing at St. James Place in April.
The Commonwealth originally wanted to give Magadini a 90-day sentence, Hall said, and the Judge declined to have a forensic psychologist evaluate him. He was given the 30-day sentence instead.
Hall said he is concerned about his client, who, he says, has been living at the gazebo behind Town Hall, and finds his way into various buildings in order to survive when temperatures drop. At trial, Hall said he “requested a ‘necessity defense,’ because 6 out of 7 charges occurred in the dead of winter last year — [Magadini] had basically no other options, and Construct, Inc. wouldn’t take him because of issues they had with him.”
Magadini said he and Construct Executive Director Cara Davis could not come to an agreement about how often he would shower while he lived at their shelter. “I didn’t fit in there,” he said, and explained the complexity of a group of strangers living together, and having to vote “on everything,” including what television show to watch. He and Davis clashed on a number of issues, but it was the wrangling over showers that resulted in his being booted out, he said, and “the police came to take me away.”
Hall said the necessity defense “will be a major issue in [Magadini’s] appeal.” Magadini, Hall added, “was found sleeping in doorways and hallways trying to stay warm…choosing something illegal over something dangerous.” It was unfortunate, he said, that this was not taken into consideration during Magadini’s trial, even though he had requested it twice on behalf of his client.
Hall said he understands the challenge homelessness presents for businesses and property owners downtown. He also noted that the Homeless Bill of Rights has not yet found its way into Massachusetts law, though in 2013 state Rep. William “Smitty” Pignatelli (D-Lenox) sponsored a bill to enact the law. Only three states have enacted the controversial legislation, and legislation is pending in a number of other states.
“I really wish there was a better way to deal with homelessness in general,” Hall said.
Magadini said he slept outside during last night’s (January 6) frigid temperatures, and said his thick, recently acquired flannel coat has helped him stay warm. When asked what he would do tonight, when temperatures are expected to dip into the negative and school opening tomorrow has been delayed because of dangerously cold temperatures, he said, “I’m going to endeavor to not trespass, and avoid going where I’m not welcome.”
Construct Executive Director Cara Davis could not be reached in time for publication.
