Boston Criminal Defense Lawyer Blog

According to The Lowell Sun, a 34-year-old Lowell Massachusetts man, who was convicted for motor vehicle homicide and operating under the influence of alcohol causing serious bodily injury six years ago found his way back to prison after serving most of his 5 to 6 year committed sentence. The defendant was released from prison to a five year probationary term. However, this week a Superior Court Judge sitting in Lowell Massachusetts found that the defendant violated the terms of his probation after being arrested on charges of domestic assault and battery and malicious destruction of property in an incident involving his sister-in-law. According to reports, he was sentenced to serve the rest of his two-year jail sentence on his conviction for operating under the influence causing serious bodily injury.

If you have been served with a notice from the probation department that they are looking to surrender you because you violated the terms of your probation it is imperative that you contact an experienced Massachusetts trial attorney. The rules that apply during a probation surrender hearing are different from the rules that apply during a trial.

The Massachusetts Supreme Judicial Court has held that “the due process clause does not place a per se prohibition on the use of hearsay evidence at probation revocation hearings.” Commonwealth v. Durling, 407 Mass. 108, 115 (1990). Rather, “[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation." The court also considers whether the evidence at the hearing is entirely hearsay and whether there is good cause for not having direct testimony.

In Massachusetts, a probationer has only a conditional liberty interest. The probationer is expected to 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. During a trial, the government must prove its case beyond a reasonable doubt. However, the standard at a probation revocation hearing is lower. A probationer's probation may be revoked based on the probation department establishing a violation by a preponderance of evidence. In Massachusetts, the Courts position is that 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. However, the Courts have held that the revocation of probation does 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. In Massachusetts, the hearsay on which the judge relies must be reliable.

If you have received notice of a "probation violation" it is important that you contact an experienced Massachusetts trial attorney to represent you at the surrender hearing. Effective representation can result in the court not finding you in violation or if you are found in violation convince the judge not to impose the sanction recommended by the probation officer. In certain situations, the submission of a memorandum opposing the finding of a violation is appropriate.

Continue reading " Lowell Massachusetts Man Found In Violation Of Probation Is Back Behind Bars " »

According to The Lawrence Eagle Tribune, the driver of a minivan was robbed at gunpoint when he stopped at a stop sign in Lawrence Massachusetts. According to the police, after the driver came to a stop at the intersection, three armed men entered his van and stole a car stereo, global positioning system and earrings. After securing the items the thieves allowed the victim to drive away. The victim proceeded to the police station to report the crime.

Based on the facts in this case it appears that in addition to armed robbery culprits could also be charged with larceny of property valued at over $250.00 and assault when they are apprehended. A conviction for armed robbery provides for a punishment of up to life in state prison. If convicted for the felony of larceny of property valued at over $250.00 an individual may received up to two and one half years in the house of correction.

In Massachusetts, there are two theories of culpability for the crime of assault. The Commonwealth can prove the crime by either proving an attempted battery or by proving an imminently threatened battery. Following a trial on this type of charge, an experienced defense attorney should request that the jury slip reflect both theories and that the judge inform the deliberating jurors that in order to convict the defendant they must unanimously agree on the theory of culpability.

Relative to proving the crime, the Massachusetts courts have held that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault. However, generally speaking words threatening future harm are insufficient to constitute an assault. This "threatened-battery branch" of assault requires specific intent to put the victim in fear or apprehension of immediate physical harm. If the Commonwealth proceeds under the "threatened battery" prong, the government does not have to prove fear on the part of the victim.

If you have been charged with assault, assault and battery, a crime of domestic violence or any other crime of violence it is important that you contact an experienced Massachusetts defense attorney as soon as possible. Based on the facts of the case, it may be necessary to interview witnesses and begin mounting a defense while the facts are still fresh in people's minds.

Continue reading " Man Robbed When He Stopped At An Intersection In Lawrence Massachusetts " »

According to The Salem News, a Peabody jury acquitted Alfred Cochrane Jr. of carrying a firearm without a license and discharging a firearm within 500 feet of a dwelling. According to reports, the defendant was charged with the firearm offenses after his downstairs neighbor reported that a bullet had come through his ceiling. Coincidentally, at approximately the same time, Cochrane was treated at the Salem Hospital for a gunshot wound to his foot. The government did not produce the actual gun and the jurors acquitted the defendant.

If you have been charged with illegal possession of a firearm it is critical that you contact a Massachusetts defense attorney as soon as possible. Succesfsul litigation of these types of cases includes filing all relevant pre-trial evidentiary and non-evidentiary motions. Motions that are part of a trial attorney's arsenal include motions to suppress evidence, motion to suppress statements and motions to inspect and examine evidence. If convicted on this type of offense the penalties may include a mandatory eighteen month sentence.

Depending on the facts of the case a criminal defendant should consider the possibility of having an independent expert/witness examine the alleged firearm to determine whether it really is a firearm pursuant to the statute. In order to secure a conviction for this type of offense, the government must prove that a defendant was in actual, joint or constructive possession of the firearm. A skillful defense attorney can attack this element of the crime at trial. Additionally, the alleged firearm must be capable of discharging a bullet. A damaged or malfunctioning weapon, depending on the facts, may not meet the definition of a "firearm" in Massachusetts.

Continue reading " Peabody Massachusetts Man Acquitted On Gun Charges " »

According to The Lowell Sun, 28 year old Michael Harmon from Framingham has been charged with a number of offenses stemming from a dispute in front of Charlie's Bar in Lowell. The paper reports that Harmon has previously been convicted as an accessory in a 2001 murder

In Lowell Superior Court earlier in the week Michael Harmon pleaded not guilty to charges of armed assault to murder, assault and battery causing serious bodily injury, carrying a firearm without a license, possession of a firearm without a firearms-identification card and illegally possession of ammunition. He has been held without bail since his arrest in March after a judge sitting in an Essex County District Court held that he was a "danger to society."

The Sun also reported that the police claimed that they were called to an area outside of the bar in the early morning hours for a "fight and possible shooting." Upon responding the police found Michael Nickerson, 30, of 53 James Ave., Tewksbury, on the ground and bleeding from an apparent gunshot wound. It is reported that Nickerson survived and he and a witness identified Harmon as the shooter. It is also alleged that Harmon admitted being in a fight but denied involvement in the shooting.

If you have been accused of committing any crime of violence, it is critical that you have an experienced Massachusetts trial attorney on your side from the beginning of the case. Your liberty is at stake from the bail hearing through disposition of the charges. For example, District Attorney's Offices have been moving to have defendants held pursuant to M.G.L.A. 276 § 58A. This statute provides that a defendant can be detained prior to trial for certain felonies or offenses that involves a substantial risk that physical force against another may result. Generally, the Commonwealth must have the hearing within three days from the time that they request such a hearing. Therefore, you must have a knowledgeable defense attorney on your side from the beginning.

Additionally, penalties that can be imposed following conviction for most felonies are substantial. For example, a conviction for armed assault with intent to murder can carry up to twenty years in state prison. Convictions for assault and battery by means of a dangerous weapon and unarmed assault with intent to murder have a potential penalty of up to ten years in state prison.

Continue reading " Lowell Massachusetts Man Charged With Assault With Intent To Murder And Firearm Offenses Stemming From A Fight In Front Of A Local Bar " »

Four mail carries who delivered mail in Lawrence Massachusetts have been charged with a number of offenses relating to receiving fraudulent prescriptions for Percocet from a long time receptionist at a North Andover doctor's office. The Lawrence Eagle Tribune reports that the receptionist and mother-in-law of one of the carriers, and another worker in the office, provided the prescriptions in the names of the carriers, which were then taken to local pharmacies to be filled.

The plot was successful until the doctor's office received a call from a Methuen pharmacy because a patient attempted to fill the prescription in the same week. Suspecting foul play, the Doctor brought in the North Andover police and the investigation led to the arrests four mail carriers, and two employees of the doctor. According to reports, the carriers were using the Percocet for themselves and not dealing them for profit.

The carriers were each charged with receiving stolen property, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The receptionist. who accordinf to the police, is the mother-in-law of of one of the carriers, was charged with larceny under $250, forgery, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The other employee was charged with larceny under $250, forgery and conspiracy to violate drug laws. The crew is due back in court on June 19th.

In order for the Commonwealth to secure a conviction against a defendant for conspiracy to violate the drug laws it must prove that there was an agreement between the parties or possession from which an agreement to posses s may have been incurred. In Massachusetts, the Courts have held that it is the agreement to possess the controlled substance with the intent to violate the particular controlled substance law that is the key not the actual possession of the contraband. If convicted for the offense an individual can receive imprisonment or a fine, or both, which punishment shall not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.

If you have been charged with any violation of the controlled substance act, you must have an experienced Massachusetts defense attorney on your side. Depending on the facts of the case, filing pre-trial evidentiary and non-evidentiary motions can lead to a favorable disposition. A successful trial attorney will file all necessary motions and fight for your rights from the arraignment through disposition.

Continue reading " Lawrence Massachusetts Mail Carriers Face Charges Of Uttering A False Prescription And Related Offenses " »

According to The Lowell Sun, Brian Ganley from Lowell has been arrested and charged with domestic assault and battery and assault and battery on a child causing bodily injury. The Sun reports that Ganley was arrested after police responded to a call for domestice violence. When the officers arrived they observed Ganley's girlfriend, who is also mother of his children, with a swollen face. Upon questioning by the police, Ganley's girlfriend told the police that he hit and choked her when she questioned him relative to why their two month old daughter had a swollen lip. The infant was initially taken to Saints Memorial Hospital then to a Boston Hospital for treatment. Although the injuries are described as severe, the child is expected to survive.

The defendant was held and is expected to face a "dangerousness hearing" in Lowell District Court. M.G.L.A. 276 § 58A allows the Commonwealth to move for pretrial detention or release on conditions for certain felony offenses that involve the use of force or threatened force and/or an offense that by its nature involves a substantial risk that physical force against the person of another may result. The Massachusetts Supreme Judicial Court recently ruled that the charge of unlawful possession of a firearm, in and of itself, does not provide sufficient grounds to move for pre trial detention.

In Massachusetts, in situations involving domestic violence, the police often inform a complainant that he or she has the option of applying for a restraining order. Although a restraining order is a civil order, an alleged violation of such an order can result in criminal charges against a defendant.

If you have been charged with a crime of domestic violence and/or domestic assault and battery you should contact an experienced trial attorney as early in your case as possible. In the event that the complainant seeks a restraining order it is imperative that a successful defense attorney who is knowledgeable in this area of the law presents your position and opposes the issuance of the order.

Continue reading " Lowell Man Charged With Domestic Assault And Battery Faces A Dangerousness Hearing " »

The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney's Office misinterpreted the "dangerousness statute" when proseuctor's moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result."

In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing "firearm w/o license, FID" as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result." § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the "menace of dangerousness" inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, "[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”

If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. Kathleen McCarthy will make sure that all of your rights are protected from the arraignment through disposition. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.

Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant's expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.

Continue reading " Massachusetts Supreme Judicial Court Rules Illegal Possession Of A Firearm Is Not Enought To Trigger A Dangerousness Hearing " »

According to the Tri-Town Transcript, Blake Smith, of Boxford was arrested and charged with what police allege is marijuana in a school zone. According to the paper, the Topsfield police arrested Smith after a plain clothes officer saw him trying to sell drugs inside the Topsfield Village Shopping Center. Apparently, more than one ounce was found on the suspect and a search of the area netted $800.00 in cash and a scale in side of the suspect's car.

If you have been charged with a drug offense in Massachusetts, it is imperative that you contact an experienced drug defense attorney to get to work on your case. If you, your clothing, car or home was searched it may be appropriate to file a motion to suppress any evidence seized as the result of an illegal search. In Massachusetts, the police must have a reason to conduct a threshold inquiry and probable cause to search an individual. Successful litigation of any drug crime in Massachusetts is often set in motion with the filing of a motion to suppress. In the event that the court allows a motion to suppress, the government is often left without a case.

In order for the government to convict a defendant for possession of marijuana with intent to distribute in a school zone it must prove that the substance was marijuana, that the defendant had the intent to distribute it and that the offense occurred within a school zone. In order to demonstrate that an individual possessed the intent to distribute the prosecutor often points to large amounts of cash that was confiscated, scales and baggies. However, there are often innocent explanations for the presence of these items and presenting this explanation to the jury is critical to a successful defense.

Continue reading " Boxford Teenager Charged With Possession Of Marijuana With Intent to Distribute In A School Zone " »

The Massachusetts Appeals Court reversed a defendant's OUI conviction holding that a gated private road within a campground was not a public way as required to support a conviction. In Massachusetts, the government must prove that an individual drove a motor vehicle while under the influence of alcohol on a public way to prove its case.

The Commonwealth secured a conviction against Brian Stoddard in the Newburyport District Court for DUI . Stoddard appealled his conviction and claimed that the District Attorney did not satisfy its burden because the defendant operated his motor vehcile within the confines of the Rusnik Campground in Salisbury Massachusetts. Although the trial judge held that the road on which the defendant drove was a "public way" as defined in Chapter 90 section 24, the Massachusetts Appeals Court disagreed and reversed Stoddard's conviction.

The typical indicia that a road is a public way is if the way is maintained by the town or city, if there are hydrants and/or lighting along the roadside and if the road is paved and lined. In this case the Appeals Court held that the presence of a gate restricted general access to the campground. The Court continued maintaining that the evidence established that no motorist approaching the entrance to the campground could suffer any illusion that he was welcome to enter the campground and drive on its roadways.

If you have been arrested and charged with operating under the influence of alcohol it is critical that you have an experienced Massachusetts defense attorney on your side. A conviction for DUI has collateral consequences such as loss of license and for repeat offenders a mandatory committed jail sentence.

Continue reading " Massachusetts Appeals Court Vacates DUI Conviction For Defendant Tried In Newburyport District Court " »