(dissenting). I concur completely in the dissenting opinion of Justice Jacobs, but add some remarks to underscore what I think is a misunderstanding in the majority opinion of the effect of recent opinions of the Supreme Judicial Court on the meaning of “substantial risk of a miscarriage of justice” and the relationship between that concept and “ineffective assistance of counsel,” two analogous but theoretically distinct vehicles for obtaining appellate consideration of alleged trial errors not preserved for appellate review by appropriate motions or objections at trial.
The misunderstanding arises from a sentence in Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994), repeated by way of dictum in Commonwealth v. Bart B., 424 Mass. 911, 914 (1997), to the effect that, “if an omission of counsel does not present a substantial risk of a miscarriage of justice in a situation such as this, there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution.” Since we all — majority and dissenters alike — assume that an ineffective assistance of counsel claim is theoretically available to a defendant who, like the defendant in this case, seems guilty beyond any question, the majority draw the inference that a claim of substantial risk of a miscarriage of justice is also available to a plainly guilty defendant. In effect the majority treat the Curtis sentence as having vitiated what this court said in Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) — a formulation seemingly accepted and endorsed in Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997) — that the first condition for application of the substantial risk of a miscarriage principle is that the case present a genuine question of the guilt or innocence of the defendant. The result is that the majority have produced what I believe is the first case in our jurisprudence to apply the miscarriage of justice standard to reverse the conviction of a defendant who seems guilty beyond doubt of the crime charged.
For the reasons stated by Justice Jacobs, the majority is, in our view, misreading the import of the sentence in Curtis. The principle of the Curtis decision is that all “collateral” attacks on convictions *132— those brought after the processes of direct appeal, including consideration of the original motion for a new trial, have been completed — should be turned aside unless the conviction poses a substantial risk of a miscarriage of justice. Commonwealth v. Curtis, 417 Mass, at 625. That decision made clear that it was only discussing “the standard of review that an appellate court generally should apply in a postappeal, collateral attack on convictions,” id. at 621; and, again, “Our attention here is on the denial of a new trial motion filed after a conviction has received appellate review, and not with new trial motions considered before a conviction has been reviewed.” Id. at 623. Footnote 4 of the Curtis decision must be understood in that context. It is discussing belated claims of ineffective assistance of counsel — those made after direct appeal, or after consideration of a new trial motion. This reading is consistent with Mass.R.Crim.P. 30(c)(2), 378 Mass. 901 (1979) (“Waiver. All grounds for relief claimed by a defendant [by way of a new trial motion] shall be raised by the defendant in his original or amended motion. Any grounds not so raised are waived unless the judge in his discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion”). Appropriate allowance is thus made in the rule for the fact that a claim of ineffective assistance of counsel often cannot be raised on direct appeal, see Earl v. Commonwealth, 356 Mass. 181, 183-184 (1969) (concerning claims of error that require consideration of facts outside the record), or even on an original new trial motion (if the defendant is represented thereon by trial counsel); but, subject to those adjustments, even a claim of ineffective assistance of counsel must be raised by the first reasonably available procedural vehicle for review or be treated as waived. Constitutionally based claims such as ineffective assistance of counsel are not different in this respect from claims of error generally. See Commonwealth v. Watson, 409 Mass. 110, 112 (1991) (“The rule of waiver ‘applies equally to constitutional claims which could have been raised, but were not raised’ on direct appeal or in a prior motion for a new trial. Commonwealth v. Deeran, 397 Mass. 136, 139 [1986]”); Commonwealth v. Curtis, 417 Mass, at 634 & n.13; Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert, denied, 513 U.S. 1091 (1995); Commonwealth v. Miranda, 22 Mass. App. Ct. at 18-19. Were it otherwise, claims for reversal based on *133ineffective assistance could “be made years after the conviction and appeal when the trial judge may well no longer be sitting,” Commonwealth v. Curtis, 417 Mass, at 624 n.3, and when it may well be no longer feasible for the prosecution to reassemble its witnesses. Following the Curtis decision, a belatedly raised claim of ineffective assistance, like other belated claims, even if considered by the trial judge, will not result in reversal unless the defendant can meet the traditional substantial risk of a miscarriage of justice standard applicable to waived claims.
Two principles emerge from reviewing the line of decisions that Justice Cutter invoked in deciding Commonwealth v. Freeman, 352 Mass. 556, 564 (1967) (“we employ the rarely used power referred to in Commonwealth v. Conroy, 333 Mass. 751, 756-757 [1956]”). The first is that use of the miscarriage standard to reverse a conviction historically lay in the discretion of the court. It was always referred to as a power of the court, not a right of the defendant. By definition, it enabled the court to reverse notwithstanding the defendant’s failure to preserve his rights. The second is that the question whether to exercise the discretion favorably to the defendant turned on an appraisal of the entire record. For example, in Commonwealth v. MacGregor, 319 Mass. 462, 463 (1946), the court said: “It is assumed that in appropriate instances this court has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a question affecting substantial rights has not been properly raised by exception at trial. An examination of the record here discloses no reason for the exercise of that power.” (Citations omitted.) Or, earlier, in Commonwealth v. McDonald, 264 Mass. 324, 336-337 (1928): “[T]his court has and will exercise the power to set aside a verdict in order to prevent a miscarriage of justice when a decisive matter has not been raised at the trial. A careful examination of this entire record discloses no reason for the exercise of that power.” (Citation omitted.) Or, earlier still, in Commonwealth v. Dascalakis, 246 Mass. 12, 23, 25, 27 (1923): “[I]n appropriate instances the court has and will exercise the power to set aside a verdict in order to prevent a miscarriage of justice when a decisive or pertinent point affecting substantial rights has not been raised by exception at the trial. ... It is enough to say that a careful examination of the entire record *134shows no ground to doubt the correctness of the trial judge in denying the motion [for a new trial] for this reason [alleged ineffectiveness of counsel].”
The Miranda decision, 22 Mass. App. Ct. at 21, derived the first criterion or condition, that there be a genuine question of guilt or innocence, from the historical underpinnings of the power as one that was purely discretionary in character, was rarely used, and would not be exercised unless the court was convinced by the entire record that a miscarriage of justice might result from allowing the conviction to stand. We had and still have no doubt that miscarriage of justice was used with its every day-language connotation: the concern was that an innocent defendant might have been convicted as a result of improperly admitted or excluded evidence or misleading instructions. Compare McCleskey v. Zant, 499 U.S. 467, 494-495, 502 (1991) (no miscarriage of justice without a colorable showing of factual innocence). Cf. Murray v. Carrier, All U.S. 478, 496-487 (1986) (procedural default excused in extraordinary cases on showing of actual innocence).
Unlike substantial risk of a miscarriage of justice, which was invoked in discretion, ineffective assistance of counsel is a rights-based remedy, deriving from the constitutional right to the assistance of counsel in framing one’s defense; it must be considered as an available remedy, consequently, though the defendant be “ ‘apprehended in flagrante delicto’ and the ‘evidence of . . . [his] guilt [be] overwhelming.’ ” Commonwealth v. Saferian, 366 Mass. 89, 93 (1974), quoting from the report of a special master. The conditions for application of the principle — that counsel’s representation fall measurably below the standard of the ordinary, fallible lawyer and that his inadequacies deprive the defendant of an available, substantial ground of defense, id. at 96 — will not normally be made out if counsel’s alleged failure or omission is attributable to tactical choice, unless the tactical choice is itself manifestly unreasonable. Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
The unnecessary loss of a substantial ground of defense and the absence of a tactical reason for the loss parallel the second and third conditions for application of the miscarriage doctrine, as set out in Miranda, 22 Mass. App. Ct. at 21 (result might have been different but for the error, and the error is not attributable to tactical choice). The factors that differentiate the two doctrines *135are that the substantial risk analysis focuses on the likelihood that an innocent defendant might have been wrongly convicted, while ineffective assistance analysis focuses on the quality of legal representation the defendant received. The first stems from a concern for justice. The second is concerned with the vindication of a defendant’s constitutional right to meaningful assistance of counsel in shaping a defense. An omission of counsel that results in the admission of highly incriminating evidence makes the case more apt for ineffective assistance analysis, because it underscores counsel’s inadequacy; but it correspondingly makes the case less apt for the application of miscarriage of justice principles.
It is doubtless true that, as observed in Commonwealth v. Curtis, 417 Mass, at 624 n.3, the concept of a substantial risk of a miscarriage of justice has been expanded since the Freeman decision and used more frequently, probably in response to increased regard for fundamental fairness to defendants and increased impatience with observing the punctilio of sometimes complex procedural rules. But in applying miscarriage analysis to a plainly guilty defendant, the majority here cut the doctrine loose completely from its historical moorings and, to my mind, have misapplied it. Equally important, they may well have consigned the Saferian standard to desuetude. If a defendant is entitled as of right to reversal simply because his counsel omitted to interpose proper objections to highly incriminating evidence, and the omission is not explainable as reasonable tactical choice, then it is made quite superfluous to prove the core element of Saferian: that counsel’s representation betray “serious incompetency, inefficiency, or inattention,” otherwise stated as “behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” 366 Mass, at 96.
Given the unsettled state of the law concerning the one-party consent rule, the majority are probably right in declining to tax the defendant’s trial counsel with “serious incompetency” for not saving the right objection to admission of the intercepted telephone conversation. It does not follow that the conviction should be reversed anyway. Whatever else may be said of the conviction of this defendant, it is certainly not a miscarriage of justice.