Briаn J. Fogarty (defendant) was convicted of assault with intent to murder, assault in a dwelling house with a dangerous weapon, assault and battery by means of a dangerous weapon, and cocaine trafficking. His convictions were affirmed by the Appeals Court,
Commonwealth
v.
Fogarty, 25
Mass. App. Ct. 693, further appellate review denied,
He now appeals from the denial of pоstconviction relief in two proceedings in the Supreme Judicial Court for Suffolk County to set aside the Appeals Court’s decision upholding his convictions and to reinstate his appeal, and for stay of execution and admission to bail pending appeal of the denial of that relief. He also appeals from the denial of motions before the trial judge for a new trial and for the judge’s recusal from hearing the new trial motion. 1 All appeals have been consolidated for review by this court. We affirm the orders of both the single justice and the trial judge.
The Appeals Court’s opinion affirming the defendant’s convictions contains an error. In the section upholding the judge’s rejection of motions to continue the trial and to permit counsel to withdraw, the court states the following: “In a recorded conference between the defendant and Ms. [Quigley], a transcript of which was read by the judge before he ruled on the matter, they referred to a clash of personalities and differences as to tactics. Ms. [Quigley] indicated, however, that she was prepared for trial” (emphasis *105 added). Commonwealth v. Fogarty, supra at 697. Because the conversation in which Quigley informed Fogarty she was ready to try his case occurred on June 23 — the day after the judge had denied the motion to withdraw — it would have bеen impossible for the judge to have read a transcript containing Quigley’s assessment of her preparedness prior to ruling on the motion. The Commonwealth acknowledges that this statement is erroneous.
The defendant, attributing unwarranted significance to this relatively innocuous mistake, commencеd an action seeking to vacate the Appeals Court’s decision and to reinstate his appeal on the ground of alleged judicial misconduct. See G. L. c. 211, § 3 (1988 ed.). 2 A single justice denied relief with leave to file a motion for a new trial. The defendant then applied for stay of execution of sentence and admission to bail; 3 this too was denied by the single justice. The defendant appealed from both these rulings and submitted a pro se brief to this court.
Subsequently, the defendant’s new counsel filed motions in the Superior Court for new trial and for the trial judge to recuse himself from hearing the new trial motion. The motian for a new trial sets out as error the same issues raised on appeal (trial judge’s denial of motions for withdrawal and continuance and ineffective assistance of trial counsel) and in the proceeding under c. 211, § 3 (alleged judicial misconduct). In a memorandum in support of the motion, nеw counsel also asserted that the defendant had discovered, only after the Appeals Court’s decision, that Quigley had not resolved a conflict of interest arising out of her simultaneous representatian of a Commonwealth witness against Fogarty, as she had *106 told him she would. 4 The affidavits submitted with the motion for a new trial did not address either the alleged judicial misconduct or the claim of a newly discovered conflict of im terest of trial counsel.
On January 10, 1989, the trial judge denied the recusal motion. He then summarily denied the motion for a new trial without a hearing, stating that “this motion raises no question which could not have been raised in the original appeal.” The defendant, represented by the same counsel who filed these motions, appealed. We begin our review with the single justice’s decisions.
1.
Denial of relief under G. L. c. 211, § 3.
Decisions of a single justice will not be disturbed on appeal absent clear error of law or abuse of discretion.
Palaza
v.
Superior Court,
The defendant’s conclusion that the misstatement in the Appeals Court’s decision is the result of impermissible ex parte communication between the trial judge and the Appeals Court hinges, not on any facts or affidavits, but merely on his bare assertions, in a pro se motion, that it “appears” to be sо, and that this conclusion is “inescapable.” 5 His contention of posttrial judicial misconduct is lacking its essential factual underpinning and is, therefore, without merit. The defendant’s other claims before the single justice were decided adversely to him by the Appeals Court. '
Clearly, errors claimed and rejected on appeal along with an unsupported charge of posttrial judicial misconduct fail to
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demonstrate a “substantial claim of violation of his substantive rights and irremediable error” necessary to justify the extraordinary relief of G. L. c. 211, § 3.
Morrissette
v.
Commonwealth,
Because we conclude that the single justice correctly denied the defendant relief under G. L. c. 211, § 3, it is unnecessаry for us to review his appeal from the denial of his request for a stay and bail pending review by this court. The issue has become moot.
2. Denial of the motion for a new trial. The trial judge denied the motion without a hearing on the ground that “this motion raises no question which could not have been raised in the original appeal.” The defendant sеeks review of this action.
The defendant’s motion for a new trial is based primarily on the denial of his requests for a continuance and for leave for withdrawal of counsel, and a claim of ineffective assistance of trial counsel. The trial judge correctly observed that these claims werе either raised on appeal and rejected, or could have been raised through this process and were not.
6
“[A] motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law” on which a defendant has had his day in an appеllate court, or forgone that opportunity.
Commonwealth
v.
McLaughlin,
The defendant’s claim of newly discovered conflict of interest on the part of trial counsel is such that it requires further elaboration.. By his own admission, the defendant was aware that his trial counsel had continuеd representing a Commonwealth witness, Sergeant Louis Peyron, in his divorce case, in anticipation that the defendant would accept an offer to plead guilty to reduced charges and would not be tried. The defendant reveals that, once he changed his mind on the plea offer, and it beсame clear that his case would proceed to trial, trial counsel assured him that she would arrange for another attorney to handle this divorce case. Not once did the defendant raise the issue before the trial judge of a possible conflict of interest arising out of counsel’s relationship with Sergeant Peyron — even though the defendant personally addressed the judge on two successive days regarding Quigley’s withdrawal motion and his own request for a continuance in order to substitute counsel. Furthermore^ there was no conflict of interest claim raised in his direct appeal. Commonwealth v. Fogarty, 25 Mass. Apр. Ct. 693, 699-700 (1988). Even in his motion for a new trial, the defendant only alludes to the facts concerning his trial counsel’s repre *109 sentation of Sergeant Peyron which were known to him at the time of his request for a continuance.
In his memorandum supporting the motion for a new trial,, however, the defendant’s new counsel asserts a newly discovered dimension to this simultaneous representation. He states that the law partner of the defendant’s trial counsel continued to represent Sergeant Peyron throughout Quigley’s conduct of Fogarty’s defense, after she had assured the defendant that she would turn the case over to аn “independent” attorney. The defendant contends he learned of this conflict of interest only after the Appeals Court’s decision was rendered.
This claim is one that the judge would not have been required to address: Under Mass. R. Crim. P. 30 (c) (2),
Furthermore, the record contains no evidence or affidavit in support of the defendant’s assertion that Quigley’s law partner represented Sergeant Peyron. Neither is there any claim by the defendant, or findings by the judge to the effect, that Sеrgeant Peyron was a crucial witness for the Commonwealth, or that Quigley was less than vigorous in her cross-examination of him. 7 Because of the absence of these facts, *110 as well, the conflict of interest issue was not properly raised below. 8
Since this question was never before the judge, we decline to consider it as well.
Commonwealth
v.
Wojcik,
The only remaining question effectively raised in thе motion for a new trial is the same judicial misconduct claim that was before the single justice. We have already concluded that this charge is without merit because the defendant has failed to establish the factual predicate on which it is based.
A judge’s decision to deny a motion for a new trial — аnd thus to conclude justice was done at trial, Mass. R. Crim. P. 30 (b),
Finally, the defendant challenges the judge’s denial of the mоtion without holding an evidentiary hearing. We conclude there was no error. The choice of deciding the motion on the basis of affidavits or hearing oral testimony is left largely to the sound discretion of the judge.
Commonwealth
v.
Stewart,
*111
3.
Denial of motion to recuse'.
The claim that the trial judge was biased against the defendant and should have recused himself is equally deficient. A judge is not required to honor every allegation of bias or partiality raised by a party.
Harris
v.
Trustees of State Colleges,
The "orders of the single justice and the judge in the Superior Court are affirmed.
So ordered.
Notes
On the motions before the trial judge, the defendant is represented by new counsel, who did not represent him either at trial, on appeal, or before the single justice of this court. The defendant, a member of the Florida bar for nine years at the time of his trial, acted pro se on the matters decided by the single justice.
In pertinent part, G. L. c. 211, § 3 states: “The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided ...”
A similar application filed with the trial judge, pending appeal of the defendant’s convictions, had been denied.
The defendant alleges that, when he rejected the offer to pleаd guilty to reduced charges, and it became apparent his case would be going to trial, Quigley assured him she would transfer to “independent” counsel the divorce case she was handling for one of the Stockbridge police officers who would be testifying against the defendant. In the memorandum in support of the motion for a new trial, the defendant’s counsel asserts that, only after his appeal was decided did the defendant discover that Quigley’s law partner had succeeded her in the police officer’s divorce case.
The Commonwealth has offered another explanation for the error it cannot but concede exists in the Appeals Court’s opinion — an innocent mistake arising in that court’s “review of a complex and lengthy record.”
Obviously this does not refer to the unsubstantiated judicial misconduct claim that was also before the single justice.
As far as we can see from the trial transcript, Sergeant Peyron testified only as to the chain of custody of the blood-stained bags of cocaine, believed to have belonged to the defendant, found hanging on a tree near the defendant’s former girl friend’s apartment on the night of his assault on her. It does not appear that Sergeant Peyron was the type of critical or significant prosecution witness whose simultaneous representation by de
*110
fense counsel’s partner, if shown, would automatically constitute a genuine conflict of interest. Therefore, the burden is on the defendant “to prove, without relying on mere сonjecture or speculation, that a genuine conflict existed,” and that he was materially prejudiced by Quigley’s law partner’s simultaneous representation of Sergeant Peyron.
Commonwealth
v.
Walter,
Rule 9 of the Rules of the Superior Court (1989), states, in relevant part: “In criminal cases the court need not hear any motion, or opposition thereto, grounded on facts, unless the facts are verified by affidavit.”