Boston Criminal Defense Lawyer Blog

Eduardo Perez of Lawrence Massachusetts pleaded not guilty in Lawrence District Court to charges that he conspired with Marie Morey, his girlfriend and former accounting clerk for the probation department, to embezzle over two million dollars from the court's Probation Department. Morey is being held at MCI Framingham on $400,000. She is accused of manipulating the accounting books and bank records beginning in January 2006.

According to The Lawrence Eagle Tribune, Perez repeatedly shook his head in disagreement with the facts presented by the prosecutor as she outlined the Commonwealth's case. Although the District Attorney's Office requested that Perez be held on $2 million dollars and cited him as a flight risk; Judge Thomas Brennan stated that he did not believe that there were enough details to hold him on bail and he was released on personal recognizance.

In order to be convicted of larceny over $250.00 the Commonwealth must prove that a defendant stole the personal property of another with the intent to permanently deprive the owner of the use of the item. Larceny over $250.00 is a felony in Massachusetts. In Massachusetts a felony is any offense in which a defendant faces a possible sentece of state prison. A misdemeanor is a crime in which the defendant only faces the possibility of a house of correction or jail sentence.

If you have been charged with any type of crime in Massachusetts it is imperative that you have an experienced Lawrence Massachusetts lawyer on your side. An experienced lawyer knows that filing appropriate motions and pre-trial investigation is standard operating procedure to secure a successful result.

Continue reading "Lawrence Massachusetts Man Charged With Larceny Over $250.00 And Conspiracy In Connection With A Scheme To Embezzle Over Two Million Dollars From The Lawrence District Court Probation Department" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Larceny/Theft

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According to The Boston Globe, former state senator Dianne Wilkerson pleaded guilty to eight counts of attempted extortion in the federal court. The disgraced senator from the 2nd Suffolk District was the target of an FBI sting that led to her arrest amidst charges that she accepted cash payments in exchange for a liquor license. It is expected that the prosecutor will request four years in prison followed by a probationary period. The defense team of Harvard Law professor Charles J. Ogletree and Max Stern are hoping for a sentence with less incarceration. The judge made it clear that he is not bound by the prosecutor's recommendation however, the federal sentencing guidelines recommend that a defendant in her position receive 37 to 46 months in prison.

In Massachusetts, defendants often plead guilty in order to receive, what they believe will be a more favorable disposition than they would have received if they went to trial and were found guilty. An experienced Boston criminal lawyer can evaluate a case and determine whether a case is triable or whether accepting a plea offer is the best course. Obviously, the decision of whether to plead guilty is up to the defendant. In the event that a defendant has "buyer's remorse" and feels that his or plea was not appropriate there are ways to withdraw a guilty plea. In Massachusetts, a defendant can file a motion for a new trial/motion to withdraw a guilty plea pursuant to Massachusetts Rules of Criminal Procedure 30. Depending on the facts of the case the grounds include arguing that the defendant's plea was not knowingly, voluntarily or understandingly entered and must be vacated.

Continue reading "Former State Senator Dianne Wilkerson Pleads Guilty To Attempted Extortion " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Celebrity Crimes

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The Lawrence Eagle Tribune reports that twenty-one year old Hector Martes of Lawrence Massachusetts was rushed to the hospital after he was stabbed in his upper abdomen and rib cage. According to reports, Martes told hospital workers that while playing "beer pong" at his home he was stabbed after an argument erupted with his stepfather and brother. The police are still investigating the incident and Martes is listed in stable condition.

Although all of the facts are unknown at this time, it appears that one of the parties could ultimately be charged with assault and battery by means of a dangerous weapon. In order for the Commonwealth to prove this crime, it must prove beyond a reasonable doubt that a defendant intentionally touched another person with a dangerous weapon. Another theory that the government may assert is that a defendant engaged in reckless conduct that resulted in bodily injury. In the event that the defendant's step-father and/or brother are charged in this, potential defenses include misidentification by the victim as to who the perpetrator was and/or self-defense and defense of another.

It is also worthy to note that anyone questioned by the police is not under any obligation to speak to them. If you find yourself in a situation where you are being questioned by the police you should refuse to answer any questions until you have consulted with an experienced Boston area attorney. If you choose to speak with the police anything that you say may be used against you in court. If a defendant is questioned by the police an experienced Lawrence Massachusetts area lawyer will review the circumstances to determine whether a motion to suppress the statement should be litigated.

Continue reading "Lawrence Massachusetts Man Stabbed At Home" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Assault and Battery By Means Of A Dangerous Weapon , Motion to Suppress Statements , Search and Seizure

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The Lawrence Eagle Tribune reports that an unusually cooperative suspect closed an investigation into multiple car break ins. According to the police, Shane Mercier, 21, of Lawrence Massachusetts produced a GPS from his pocket that was stolen from an unlocked car in the area. Apparently, the remorseful defendant admitted to breaking into a number of unlocked vehicles in the area. A cell phone, cash and gift cards to Walmart, Dunkin Donuts and K Mart were among some of the other items recovered from Mercier. Police approached the cooperative defendant when they were investigating reports of a number of cars that had been broken into. Based on the facts in this case the defendant can be charged with a multiple counts of breaking and entering into a motor vehicle in the nighttime with intent to commit a felony.

In this case it appears that the suspect spoke with the police officers and provided information that amounts to a confession. In Massachusetts, police officers must inform a suspect that he or she has a right to remain silent, that what he or she says can be used against him or her and that he or she has a right to a lawyer before speaking to the police. These rights are traditionally referred to as "Miranda Rights." The police must inform a citizen of these rights prior to speaking with him or her if the individual is in custody and is subjected to police interrogation or questioning. In the event that it appears that a person's Fifth Amendment rights against self incrimination have been violated by the failure of the police to provide these rights, then an experienced lawyer will file a motion to suppress statements. If successful, the government cannot use the defendant's statement during the trial.

Continue reading "Lawrence Massachusetts Man Charged With Multiple Break Car Break Ins " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Motion to Suppress Statements

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The Lowell Sun reports that 29 year old Marco P. DaSilva, has been held without bail as a result of an incident of domestic violence involving his wife. According to the Sun, DaSilva and his wife have been experiencing marital difficulties over the past months. On April 3rd DaSilva came home drunk and an argument ensued when he and his wife argued about the fact that she suspected him of having an affair. The paper reports that the argument became physical and when the police arrived at the home DaSilva's wife has a large bruise on her neck and the house was in disarray. DaSilva was arraigned in the Lowell District Court and charged with attempted murder, assault and battery, assault with a dangerous weapon and intimidating a witness.

This type of case is often categorized as a case of "domestic violence." In Massachusetts, a spouse cannot be forced to testify against his or her spouse. This is called the "marital privilege." However, the privilege is a "trial privilege" and many counties are insisting that a case be marked for trial in order for a spouse to assert the "privilege." Also, prosecutors can force a spouse to testify in front of a grand jury because it is not a trial. However, even if the grand jury returns and indictment, the spouse still cannot be forced to testify at a trial.

Cases of domestic assault can be dismissed if a spouse asserts his or her privilege and the Commonwealth does not have any other evidence. The types of evidence that a District Attorney's Office often tries to introduce into evidence even if a spouse does not testify include a statement of the defendant, a "911" or "turrett tape," pictures of injuries, medical records and any other independent witness testimony.

If you have been charged with a case of domestic assault and battery it is imperative that you have an experienced criminal defense lawyer on your side. Filing appropriate motions to dismiss and exclude evidence can often be the difference between walking away from the charges and being convicted of a felony or a misdemeanor.

Continue reading "Lowell Massachusetts Man Faces Attempted Murder And Related Charges Stemming From A Domestic Dispute" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

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Make sure you take all your cash and valuables with you when you park your car. The Lawrence Eagle Tribune recently reported that a citizen claimed that after he parked his car and went to smoke a cigarette he returned to find his passenger side window smashed. Further inspection revealed that his I-pod and wallet were taken from the center console. The perpetrator was seen running from the car but no arrest has been made.

In the event that someone is charged with this crime they could face charges of breaking and entering a motor vehicle with intent to commit a felony and larceny over $250.00. Both of these offenses are felonies in Massachusetts which means that a defendant faces a potential sentence of a state prison sentence. Although this is a possibility, if a defendant is prosecuted in the district court the maximum potential penalty will be two and one half years in the house of correction.

In view of the fact that the perpetrator was not arrested at the scene and it appears that the victim did not get a good look at him or her, a viable defense [in the event that someone is charged with this crime] would be that the defendant has been misidentified. In Massachusetts an experienced criminal lawyer often cross examines any witness that makes an identification on the opportunity [or lack of opportunity] he or she had to see the culprit, the lighting or lack of lighting, the length of time that the witness was able to observe the incident and whether a witness has a bias against the defendant.

Continue reading "Thief Breaks Into Parked Car And Steals I-Pod And Cash In Lawrence" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Breaking and Entering

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Attorney Kathleen M. McCarthy successfully litigated a defendant's motion to withdraw his guilty plea. The defendant pleaded guilty to so much of a second-degree murder indictment that alleged manslaughter in the Suffolk County Superior Court. Apparently recognizing weaknesses in the case, the Commonwealth recommended that the defendant be sentenced to ten to eleven years in state prison. Prior to the plea hearing the defendant was aware that a witness had recanted his statement. However, during the plea hearing the prosecutor stated that a number of witnesses had recanted their statements. The defendant, uncertain as to what witnesses the prosecutor was referring to, inquired about the number of witnesses that actually changed their statements. The defendant secured a copy of the transcript from the plea hearing and pursued his claim.

Post conviction investigation revealed that one of the main witnesses for the Commonwealth informed a victim witness advocate that she had lied in the grand jury. Affidavits and witness testimony proved that this information was NEVER forwarded to the defendant or his attorney prior to the plea hearing. Following the hearing, the motion judge allowed the defendant's motion finding that the Commonwealth had not produced exculpatory evidence.

Depending on the circumstance of a case, a defendant may argue that a guilty plea was not voluntarily, knowingly and intelligently tendered because he or she was not aware of exculpatory evidence prior to the hearing. In this case, the exculpatory evidence was the witness' statement that she lied in the grand jury. The United States Supreme Court has held that a guilty plea must be intelligently made because a waiver of Constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. See, Brady v. United States, 397 U.S. 742 (1970) [The issue of an intelligent waiver by the defendant is inextricably tied to the knowledge that he had at the time he pleaded guilty]; Commonwealth v. Correa, 43 Mass. App. Ct. 714 (1997); Machibroda v. United States, 368 U.S. 487 (1962); M.R.Crim.Proc. Rule 12; 43 C M.G.L.A.. [With respect to the voluntariness of the defendant’s plea, the court may consider whether coercion, deception, duress, improper inducements or trickery played a part in the defendant’s decision to plead guilty]; Huot v. Commonwealth, 363 Mass. 91, 96 (1973); Machibroda v. United States, 368 U.S. 493 (1962) [A guilty plea is void if it is involuntary and unintelligent for any reason]. It is also well settled law in Massachusetts that the prosecutor has a continuing duty to disclose exculpatory evidence. Commonwealth v. Lam Hue To, 391 Mass. 301 (1984). Thus, if a defendant has grounds to claim that he or she was not given information that would have effected his or her decision to plead guilty, a viable motion to withdraw the plea should be filed in the appropriate cases.

Continue reading "Boston Criminal Attorney Kathleen McCarthy Successful Vacates Manslaughter Plea" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

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It seemed like a routine disposition on a domestic violence case in Salem District Court. Fifty-four year old Anthony Rosado received a suspended sentence as a result of a domestic incident last November in Beverly Massachusetts. Rosado's terms of probation included a requirement that he remain drug free and report to his probation officer. Apparently, the terms were too much for the Beverly man and The Salem News reports that two days into his sentence he tested positive for opiates. The News reported that his probation officer also claimed that Rosado tested positive again two weeks later then just stopped showing up. As a result of Rosado's behavior the probation department issued a notice to him to appear in court and face a surrender hearing. On the day of his court hearing, he was detained by the Court Officers after he set off the alarm. A bottle of liquid was ultimately discovered in his sock. The speculation was that Rosado planned to present this urine in an effort to beat the drug test. After a brief hearing he was carted off to Middleton jail pending a final surrender hearing.

In Massachusetts, a probationer has only a conditional liberty interest. See Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006). The probationer must comply with the conditions of probation. A breach of a condition of probation constitutes a violation, and if the probation officer receives information tending to show that the probationer has breached, the officer may “surrender” the probationer to the court. Id., at 64-65. A probation revocation hearing is not part of criminal prosecution and, thus, a probationer need not be provided with the full panoply of constitutional protections available at criminal trial. See Commonwealth v. Wilcox, 446 Mass. at 67, see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). “The revocation of probation does, however, result in a deprivation of liberty within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution and thus, the Commonwealth must provide probationers with certain protections at surrender hearings. Commonwealth v. Durling, 407 Mass. 108, 112 (1990); Gagnon v. Scarpelli, 411 U.S. at, 783; Morrissey v. Brewer, 408 U.S. 471, 487-88 (1972). “The hearsay on which the judge relies must be reliable.” Commonwealth v. Nunez, 446 Mass. 54, 58 (2006). The Supreme Judicial Court has written that unlike the confrontation clause, due process demands that evidence be reliable in substance, not that its reliability be evaluated in a particular manner. See Commonwealth v. Given, 441 Mass. at 747 n.9. While the court did not define what it meant by the term “reliable in substance” the high court has set the standards to verify reliability. Evidence that would be admissible under standard evidentiary rules is presumptively reliable for due process purposes. See Commonwealth v. Given, 441 Mass. at 747, see also Commonwealth v. Durling, 407 Mass. at 118; Ohio v. Roberts, 448 U.S. 56, 66 (1980), overturned 541 U.S. 36. Hearsay evidence that is inadmissible under the rules of evidence or statute is inadmissible. See Commonwealth v. Given, 441 Mass. at 743-44.

Thus, if you have received notification that you are facing a surrender hearing you must have an experienced criminal defense lawyer on your side. Knowing the applicable standards and ensuring that the probation department is held to meet their burden is imperative. Most defendants do not go to jail because of the initial charges in district court. They find their way to the house of correction because the probation department maintains that he or she did not fulfill his or her terms of probation. In most cases, there is a reasonable argument that the defendant did not violate the terms of probation and/or that the probation officer has improperly issued a violation notice.

Continue reading "Beverly Man Faces Probation Surrender After Violating Terms Of Probation And Attempting To Smuggle Urine Into The Salem District Court" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Probation Surrender Hearings

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The standard that a Court must apply to determine whether to issue a 209 A restraining order is whether the plaintiff has been put in reasonable apprehension of imminent physical harm. In many Massachusetts court houses, there are so many requests for restraining orders that a portion of every day is dedicated to these types of hearings. In many cases, a plaintiff alleges that the defendant's actions caused him or her to become fearful.

In defending against a restraining order it is important to point out that the complainant's fears are not reasonable and/or that there is not REASONABLE apprehension of IMMINENT PHYSICAL HARM. For example, if a plaintiff is alleging that the defendant caused him or her to fear for his or her safety it is important to establish when the alleged incident occurred. If the plaintiff is alleging the defendant's conduct occurred weeks or months ago, the judge may decide that the actions were not recent enough to establish an imminent fear.

In order to apply for a restraining order in Massachusetts the defendant and the plaintiff must be married or were married to each other; must be or reside in the same household; are or were related by blood or marriage; have a child together or are or were in a "substantive dating or engagement relationship." Thus, not only are couples often at the center of restraining order hearings but a disgruntled roommate may apply for a restraining order in an attempt to oust a roommate. In these situations, an experienced Massachusetts restraining order attorney can establish that the plaintiff is not in fear of the defendant but merely wants him or her removed from the apartment.

In the event that a restraining order issues, it usually states that a defendant cannot have any direct or indirect contact with the plaintiff. In the age of electronics, this includes no text messaging, no phone calls and no e-mails. Obviously, a defendant must refrain from leaving notes, sending messages or flowers to a plaintiff even if the items are not personally delivered by him or her. Any contact, direct or indirect, is considered a violation. Thus, even a defendant's attempt to have a message delivered to a plaintiff from another individual is considered indirect contact.

Continue reading "Overview Of The Massachusetts 209 A Restraining Order Law" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Restraining Order

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Thirty-five year old Luis Reyes was arraigned in Lowell District Court and charged with assault and battery on a child, two counts of assault and battery on a police officer and resisting arrest. The Lowell Sun reports that Reyes is accused on biting his three year old son on his shoulder. According to The Sun, the police were called to 47 Chapel Street by the boy's aunt. Apparently, the child was screaming and crying in pain as the result of a bite mark on his shoulder. Upon questioning by his aunt the boy pointed to his father. Following a bail hearing, Reyes was ordered held on $2,500 cash or $250,000 surety after pleading not guilty to the charges.

In Massachusetts “assault and battery” is the intentional and unjustified use of force upon t another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another. An “assault” is an attempt or offer to do bodily harm to another by force or violence, or simply an attempt to commit a battery. Depending on the facts of the case, self-defense or defense of another are often a viable defenses to a charge of assault and battery. Once a claim of self-defense or defense of another is viably presented, the burden shifts to the Commonwealth to disprove such affirmative defense.

Continue reading "Lowell Massachusetts Man Charged With Assault And Battery On A Child And Related Charges After Allegedly Biting A Three Year Old Boy" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Assault and Battery

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The Lowell Sun reports that forty-eight year old David Aguilar of Lowell has been arrested and charged with robbery in connection with a break in at the Top Donut Shop on Bridge Street. Police officers responded to the local shop after a report that an unarmed man had robbed the store. The authorities received information that the suspect was heading to a local convenience store following the theft. Aguilar was arrested and charged with one count of unarmed robbery.

In Massachusetts, the charge of unarmed robbery must be litigated in the Superior Court because it is a felony. A felony is any charge in which a potential penalty is a sentence to state prison. In the event that the District Attorney's Office decided to keep the case in district court the defendant may be charged with a misdemeanor crime such as breaking and entering in the the nighttime. However, the District Attorney's office has the final say on what charges a defendant will face.

Based on the facts in this case it appears that attacking the identification of the defendant may be a viable area for the defense to pursue. Any time that a suspect is not apprehended at the scene of an incident attacking the identification procedure is always a fertile area for the defense. In these types of cases, filing appropriate pre-trial motions for disclosure of identification procedures are critical.

Continue reading "Lowell Massachusetts Man Faces Robbery Charges In The Lowell District Court" »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Breaking and Entering

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It was a bad day for seventy-one year old Edward Holden of Middleton when he was arrested and charged with a second offense of drunk driving in the Salem District Court. According to The Salem News, a Middleton police officer spotted Holden driving his PT Cruiser down a one way street the wrong way forcing other cars to swerve out of his way. According to reports, he was driving home after he was turned away from a package store. This past summer Holden was arrested and charged with his first offense of drunk driving after being involved in a head on collision while travelling the wrong way on Route 114.

The Essex County District Attorney's Office moved to have Holden held without bail because he violated a term of pre-trial probation on his previous arrest by driving. A Salem District Court Judge denied this request but imposed $5,000.00 cash bail. Holden will be held in the Middleton Jail until he posts bail. He is due in court later this month for a pre-trial conference.

In Massachusetts, in order for the Commonwealth to prove that a defendant was drunk driving they must show that the person was driving a motor vehicle, on a public way and was under the influence. A commonly litigated issue is whether the defendant was under the influence. In order to prove this the District Attorney's Office often relies on the observations of the police officers, the field sobriety tests, a breathalyzer (if any) and any statements of the defendant.
In order to counter the testimony of the officers, a good strategy is to emphasize all of the defendant's behavior that is consistent with sobriety. For example, illustrating that the defendant had not problem producing his or her license, no problem getting out of the car and could follow directions are fertile areas of cross examination.

Continue reading "Elderly Middleton Massachusetts Man Faces Second Drunk Driving Charge In Salem District Court " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: OUI/DUI

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