Boston Criminal Defense Lawyer Blog

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 " »

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 " »

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 " »

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 " »

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 " »