Massachusetts Criminal Defense Attorney Blog

The Lynn Item reports today that a 28 year old Peabody man was arrested for drunk driving, fourth offense.  The defendant, Robert Farley was held without bail pending a dangerousness hearing.  It is alleged that Farley was driving 79 mph on Route 1 at 1:30 a.m.  Police followed the car watching it weave between lanes and around cars without signaling.  Once the police activated their lights Farley slowed but failed to stop for a lengthy distance.  Once stopped the defendant appeared unsteady on his feet and swayed from side to side falling backwards towards the hood of his car.  Police located an open container of alcohol and several empty beer cans in the car.  Farley was in possession of illegal prescription drugs and was operating without a license or registration in his possession.  Nearly 3 hours after his arrest Farley asked a trooper if he believed that he was still drunk.  The trooper conducted several field sobriety tests at that time and related in essence that four of six administered had been failed.  A police report indicated that the suspect had to be told five different times in the course of two minutes the location of where his car had been towed.  Read Article, Lynn Item, December 30, 2008. 

So how much trouble is Farley in?  Well first, he is being held without bail pending a hearing on dangerousness.  Dangerousness is governed by Massachusetts General Laws Chapter 276 Section 58A.  That statute permits the prosecution to move a judge to detain an individual pending trial.  The judge must hold the suspect in custody until a hearing can be scheduled.  The statute permits the prosecution 3 days to prepare for the hearing.  This means that if the prosecutor wants to move for detention based on dangerousness and they are not ready to proceed with a hearing the judge, upon their request, must hold you for as many as 3 days if this is the time necessary for the prosecution to prepare for the hearing.  It appears that the prosecution is afraid that Farley, given his criminal history and relative youth is a risk to the public and that incarceration is in the community's best interest while his case is pending.  After the hearing the judge can impose virtually limitless terms for release, or he may simply decide to detain Farley pending trial. 

This however is only the beginning for Farley.  He must also defend the 4th offense drunk driving charges.  If convicted of a 4th offense OUI you must serve at least 1 year in jail.  There is a potential 5 year prison sentence if the case is indicted and tried in the superior court.  There is also a 10 year loss of license and a hardship license will not be an option for at least 5 years and for up to 8 years. 

Continue reading "Peabody Man Charged With 4th Offense Drunk Driving" »

Fox News reported that Marc Bellino, a 26 year old Braintree, Massachusetts was arrested and charged with drug and weapons offenses.  Charges are pending in the Quincy District Court.  According to reports police received information that there was a problem at 11 Zana Park Drive, the address where Bellino lived with his parents.  When police entered the premises they located white powder consistent with cocaine and related drug distribution paraphernalia including a scale and razor.  Authorities further allege that Bellino admitted to having more drugs in the house along with a sawed-off shotgun, some handguns and an assault rifle.  Serial numbers were obliterated from the firearms and Bellino did not have licenses to possess the weapons. 

So what are the possible charges Bellino faces?  First is the cocaine.  If the quantity totals less than 14 grams he can be charged with possession with the intent to distribute cocaine.  This would be a violation of Massachusetts General Laws Chapter 94C Section 32A.  To convict Bellino of these charges the prosecution will have to proved beyond a reasonable doubt that he possessed a certain amount of cocaine and that he did so with the intent to distribute the cocaine rather than keep it for personal use.  The prosecution will likely use the scale and firearms as evidence to show that Bellino was in the business of distributing cocaine.  If convicted and he has no prior convictions for this offense, Bellino can be sentenced to up to 2 1/2 years if the case is prosecuted in the district court or up to 10 years if the case gets indicted to the superior court. 

The possible firearms charges are possession of a firearm in violation of Massachusetts General Laws Chapter 269 Section 10.  Of particular not is the sawed-off shotgun.  If the case remains in the district court a conviction carries a minimum mandatory 18 months in the house of correction.  If indicted to the superior court there is a minimum mandatory 2 1/2 year state prison sentence.  More importantly, this charge carries a possible life sentence. 

Possession of drug paraphernalia is a misdemeanor punishable by up to 2 years in jail.  It is a violation of Massachusetts General Laws Chapter 94C Section 32I to possess such materials.  In this case, the razor and electronic scale are alleged to by the prohibited paraphernalia.  The sentences in this case can be consecutive whether or not the case is resolved in the district court or the superior court. 

Possible defenses in this case involve the legality of the entry to Bellino's house.  It does not appear that the police had a warrant nor is there any indication that some sort of emergency preceded the entry.  Typically in cases such as this motions to suppress are filed.  If allowed, much if not all of the evidence is excluded from trial.  Oftentimes this results in a dismissal of the case due to the fact that the prosecution is unable to proceed with its case.

Continue reading "Drug And Gun Charges Filed In Quincy District Court Against Braintree Man" »

Rarely does the prosecution have the right to appeal from a jury verdict.  However, in Commonwealth v. Dery, Slip Opinion December 23, 2008 it looks like the prosecution did just that - - and lost its case in the process. 

The defendant Zachary Dery was tried on September 13, 2007 for OUI and other traffic matters.  The impanelment process commenced and due to the parties striking prospective jurors the panel was reduced to 5 members.  The judge told the defendant that he could proceed with 5 jurors.  The defendant consented to trial in that manner freely and willingly.  No written waiver was filed and the prosecution never lodged an objection to this process.  The defendant's gamble paid off and he was acquitted of the OUI charges.  

For some reason, not explained in the Court's opinion the Commonwealth tried to have the case restored to the trial list claiming that 5 jurors cannot legally decide the case and that the defendant never signed a jury waiver in accordance with Massachusetts Rule of Criminal Procedure 19(b).  The trial judge refused to allow the prosecution to retry the case and an appeal followed. 

As to the constitutional argument, the Supreme Judicial Court held that a trial by a jury of less than six jurors survives constitutional scrutiny provided the defendant consents to this procedure.  Contrary to the position of the prosecution, a five person jury trial is not a nullity.  In another case also decided today that sentiment was explained.  See Commonwealth v. Nicoll, Slip Opinion December 23, 2008.  As to the failure to sign the jury waiver pursuant to Massachusetts Rule of Criminal Procedure 19(b) the Court held that the prosecution's failure to object at the time of the waiver resulted in a forfeiture of its rights and that Rule 19(b) serves as a safeguard for the benefit of a criminal defendant.  In addition, in this case Rule 19(b) might not have been applicable in that jeopardy, which is a prerequisite for Rule 19(b) had not yet attached. 

Continue reading "SJC Affirms Acquittal In Drunk Driving Case" »

Continue reading "Bribery Charges Issue For Newton Man In Concord District Court" »

Former Boston gang member Michael Addison was sentenced to death yesterday for killing a Manchester, New Hampshire police officer.  In October of 2006 Officer Michael Briggs and his partner confronted Addison who was suspected in a shooting and a couple of armed robberies.  In order to avoid apprehension Addison shot Briggs in the head and fled.  The death penalty phase of the trial followed the murder conviction after a 9 week jury trial.  It marked the first time in 49 years that a New Hampshire jury issued a death sentence.  The last execution in New Hampshire was in 1939.  If the death sentence is upheld Addison will die by lethal injection. 

Fighting against the death penalty Addison's lawyers showed that he had a troubled childhood and likely sustained brain damage as a result of his teenage mother's alcohol and drug abuse during pregnancy.  Evidence showed that Addison had been abandoned by his parents and raised by his maternal grandmother. When he was 16 Addison was taken into custody by the Department of Youth Services after a failed attempt to shoot a student outside a Dorchester high school. He was convicted later of stabbing a man and stealing his hat.  The prosecution on the other hand portrayed Addison as the former leader of a violent Boston street gang. 

Several politicians weighed in on the verdict.  Governor John Lynch issued a statement affirming his belief in the death penalty.  He also stated that he "believe[s] this was a just verdict."  A Portsmouth state representative vowed to file anti death penalty legislation.  Such legislation was passed by the legislature in 2000 only to be vetoed by the governor.  Boston Globe, December 19, 2008, Shelley Murphy. 

Currently there is no death penalty in the Commonwealth of Massachusetts.  In 1975 the Supreme Judicial Court decided the case of Commonwealth v. O'Neal, 367 Mass. 440 (O'Neal I).  In that case the Court focused on the defendant's right to Due Process and held that "the right to life is a fundamental constitutional right, that due process of law requires that the burden be on the State to demonstrate a compelling State interest served by the mandatory death penalty and absence of any less restrictive means of furthering such interest".  The Court in O'Neal I requested that this matter be briefed on this one issue.  A few months later in Commonwealth v. O'Neal II, 369 Mass. 242 (1975) the Court ultimately held that the Commonwealth had not provided adequate justification for capital punishment, and the statute thus violated both the due process and the prohibition of cruel or unusual punishment provisions of the Massachusetts Constitution. This remains the state of the law today notwithstanding approximately seven gubernatorial and/or legislative attempts to re-institute a death penalty law. 

Continue reading "Former Massachusetts Man Sentenced To Death For Killing Police Officer In 2006" »

Today, in a published opinion the Massachusetts Appeals Court reversed a conviction for threatening to commit a crime in violation of Massachusetts General Laws Chapter 275 Section 2 citing insufficient evidence.  See Commonwealth v. James, slip opinion December 18, 2008.  The Appeals Court reported the following facts: 

1.  That in December 2006 the defendant was serving a sentence in the Suffolk County House of Correction.

2.  During a search of his cell prison authorities found letters that the defendant had written to another inmate in which the defendant asked this inmate to kill a woman whom he had dated prior to his incarceration.  Apparently, during his incarceration this woman ended the relationship.  The defendant believed it had something to do with her seeing another man. 

3.  In one of the letters the defendant wrote that he wanted the woman shot in the stomach, chest or head, that he wanted her in critical and that he would kill her himself.  In another letter he against wrote that he wanted her shot in the chest or stomach, and that he wanted the place checked out in advance.

4.  In a tape recorded the defendant admitted to writing the letters but that he did so in a passing moment of anger and that he never intended for anyone to follow up on the threats.

5.  The threats were communicated to the woman through law enforcement officials. 

A jury sitting in the Boston Municipal Court convicted the defendant.  Reversing the conviction the Appeals Court held that to sustain a conviction under Massachusetts General Laws Chapter 275 Section 2 the prosecution must prove that the defendant had the intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient.  Menacing words alone, or even those that express a threat to commit a crime do not satisfy the prosecution's burden to sustain a conviction under this statute.  The prosecution must also prove that the threat was communicated in some manner to the defendant's intended victim, either directly or through an intermediary.  Mere proof that threatening words their target will not suffice to satisfy the government's burden under this statute. 

Continue reading "Threatening To Commit A Crime Conviction Reversed By Massachusetts Appeals Court" »

An Essex County Superior Court Judge sitting in Lawrence sentenced a 47 year old man to life in prison for raping and sexually abusing his daughter.  According to reports in the Lawrence Eagle Tribune, the victim moved to this country from the Dominican Republic when she was 11 years old to live with her mother and the defendant, her stepfather.  Within a month sexual abuse started.  It lasted for 2 years.  The victim then returned to the Dominican Republic where she remained for a few years.  When she turned 16 she moved back to Essex County the abuse resumed and within a few months the defendant was arrested. 

The case was tried before a jury in the Essex County Superior Court in Lawrence.  The defendant was convicted of rape, indecent assault and battery, incest and assault and battery by means of a dangerous weapon.   The judge who presided over the trial called the defendant's conduct "appalling" and "close to torture".  He then sentenced the defendant to life in prison on the rape charge.  A 9-10 year sentence was imposed on 3 counts of indecent assault and battery on a person under the age of 14.  A 9-10 year sentence was imposed for the conviction of one count of assault and battery with a dangerous weapon.  These sentences were to run concurrently with the life sentence.  On the 3 incest counts the judge sentenced the defendant to 15-20 years in prison to run from and after the life sentence.  Concurrent with this sentence were 4-5 year prison sentences for indecent assault and battery on a person over 14. 

Assuming the convictions survive an almost inevitable appeal the defendant will be eligible for parole in 30 years. 

Of particular interest in this case is the incest charge.  The Massachusetts incest statute, G.L. c. 272 sec. 17 states that anyone "within degrees of consanguinity within which marriages are prohibited" who engage in sexual intercourse shall be punished by up to 20 years in state prison.  A Massachusetts Supreme Judicial Court case, Commonwealth v. Rahim, 441 Mass. 273 (2004) made clear that sexual intercourse between a step-father and step-daughter is not incest.  Here, there exists a strong possibility that the incest convictions will be overturned.  If that is the case, the defendant will be parole eligible in 19 years as opposed to 30 years.

Continue reading "Judge In Lawrence, Massachusetts Sentences Man To Life For Rape, Sexual Abuse" »

Continue reading "Man Charged With Breaking And Entering Arraigned In Framingham District Court" »

Continue reading "Are Perjury Charges In Store For A Massachusetts State Trooper" »

On November 23, 2008 a Westfield, Massachusetts 17 year old high school student was driving a car under the influence of alcohol.  The result was an accident that killed a Westfield High School junior and injured 3 other teenagers.  The driver now faces charges of motor vehicle homicide, operating a vehicle while under the influence of alcohol, operating to endanger and three counts of operating a vehicle under the influence of alcohol causing serious bodily injury.  Reports suggest that the defendant was driving at a high rate of speed when he lost control of his vehicle on a curve and struck a tree.  Charges are now pending in the Westfield District Court.

Continue reading "Massachusetts Student Charged With Motor Vehicle Homicide" »

On November 15, 2008 a Walpole man was arrested and charged with drug and weapons charges after leading police on a high speed chase.  He had been released after posting bail in the Stoughton District Court.  Then, just last week, the same man was arrested when he was found in possession of heroin.  He is now being held without bail at the Norfolk County Jail in Dedham.  

As to the first case, it was reported that the defendant led police on a high speed chase on Route 24.  When he was apprehended he was found in possession of 31 bags of heroin with a street value of approximately $1,500.  Apparently the quantity was not sufficient to charge the man with trafficking heroin.  After stopping the vehicle police also located a loaded .32 revolver and 11 grams of marijuana.  Police were assisted in stopping Antoine by a truck driver who blocked the vehicle.  Antoine and another were ordered out of the car at gunpoint at which point officers observed a bag of marijuana wedged between the driver's seat and the door.  

Continue reading "Walpole Man Arrested For Heroin Charges Held Without Bail At Dedham Jail" »

In July of this year a 43 year old Falmouth man was arrested and charged with enticing a child under the age of 16 for sex and the dissemination of matter harmful to a minor.  His lawyer is trying to get all charges dismissed claiming that the charges against the defendant cannot stand because there was no intent to rape the victim.  The prosecution in this case alleges that the defendant, a convicted sex offender, tried to persuade a girl to watch him masturbate over the internet.  

The Massachusetts child enticement statute is G.L. c. 265 sec. 26(C).  The law states that anyone who entices someone under the age of 16 into or out of a building, vehicle, home or outdoor space with the intent to commit an enumerated crime shall be punished for up to 5 years in prison.  Some of the enumerated crimes are assault and battery, indecent assault and battery, rape and rape of a child.  The word entice has been held to mean to lure, induce, persuade, tempt, incite, solicit, coax or invite. 

Continue reading "Falmouth Man Looks To Have Internet Sex Crimes Case Dismissed" »

On January 28, 2007 Herman Irene flagged down a cab on South Broadway in Lawrence, Massachusetts.  The cab driver, Bienvenido Rodriguez already had a fare but agreed to let Irene sit in the front seat and drive him a short distance for five dollars.  The passenger heard Irene and Rodriguez argue in Spanish.  Irene then brandished a knife, robbed Rodriguez and fled from the cab.  That is when Rodriguez took out his gun and fired a shot into Irene's back.  The passenger witnessed the robbery and the shooting.  Irene was charged with armed robbery and assault with a dangerous weapon.  Prior to trial he was offered a 5-7 year sentence.  Irene rejected the offer, went to trial in Salem Superior Court and lost.  He was just sentenced to 15-22 years in state prison.  He will have to serve at least 15 years of this sentence before he is eligible for parole.

The prosecution did attempt to charge the cab driver with armed assault with intent to murder, assault and battery with a dangerous weapon, and discharging a firearm within city limits.  The case was presented to an Essex County Grand Jury.  The grand jury did not return a bill.  The result is that there was no prosecution against Rodriguez.  

Continue reading "Lawrence Massachusetts Man Convicted Of Armed Robbery Even Though He Was Shot By His Victim" »

A Hudson, Massachusetts man pleaded guilty to cocaine trafficking in the Middlesex County Superior Court on Monday.  He was sentenced to 3-4 years in state prison.  The defendant was charged with cocaine trafficking and conspiracy after his arrest in 2007.  According to a report in the Metrowest Daily News, the defendant's home was raided by police in September of 2007.  Seized during the raid was more than five ounces of cocaine.  Police estimated the street value of the drugs at between seven and eight thousand dollars.  Charges against a co-defendant also charged with these crimes are still pending.  

Cocaine trafficking in Massachusetts is a crime under G.L. c. 94C sec. 32E(b).  To convict someone of trafficking the prosecution must prove beyond a reasonable doubt that the person possessed a controlled substance (in this case cocaine), with the intent to distribute the substance or that he actually did distribute that substance, and that the amount of the substance exceeded a threshold weight.  The penalty is a function of the quantity of the substance you have been convicted of trafficking.  An ounce of cocaine equals 28 grams.  In this case the defendant was accused of trafficking 5 ounces or 140 grams of cocaine.  The punishment required by law in this situation is that the defendant serve a minimum mandatory 10 years in state prison.  By all accounts he got a great deal.  

Continue reading "Massachusetts Man Trafficking Cocaine Sentenced To 3-4 Years" »

The Newburyport Daily News reported yesterday that the following cases were disposed of on November 28, 2008:

Case # 1:  A 55 year old Newbury man was convicted of driving with an unregistered motor vehicle and driving an uninsured vehicle.  Both matters were continued without a finding and the defendant was assessed $500 in fees to the court.  Massachusetts General Laws Chapter 90 Section 9 prohibits the operation of motor vehicles that are unregistered.  This offense is punishable by a fine.  Massachusetts General Laws Chapter 90 Section 34J makes it illegal to operate without insurance.  There is a mandatory $500 fine for violating this law and a possible jail sentence.  Newburyport motor vehicle crimes defense lawyers such as Stephen Neyman defend people charged with crimes such as these. 

Case # 2:  A 21 year old Peabody man charged with driving after having his license suspended succeeded in getting his case dismissed with court costs.  The arrest was made by the Newbury Police. 

Case # 3:  A 19 year old Haverhill man charged with carrying a dangerous weapon and miscellaneous motor vehicle violations had his case continued without a finding.  As a condition, the man was made to forfeit the weapons and pay court costs.  The crime of carrying a dangerous weapon is set out in Massachusetts General Laws Chapter 269 Section 10(b).  That law prohibits you from carrying on your person or under your control in a motor vehicle stilettos, daggers, switchblades, blowguns, blackjacks, brass knuckles, nunchaks, starlike objects intended to injure a person when thrown, spikes, studs, weighted chains and more.  A conviction for this offense can carry up to five years in state prison.  Contact a Newburyport Violent Crimes Defense Lawyer if you have been charged with one of these offenses. 

Case # 4:  A twenty two year old Portland, Maine woman charged with OUI liquor and negligent driving had her cases continued without a finding for one year.  She is also required to complete an alcohol safety awareness program, pay fines and suffer a 45 day loss of license.  This is a typical disposition for someone with no prior OUI convictions.  It is known as the "24D program".  Oftentimes the 45 day loss of license is tempered by the issuance of a license providing restricted driving privileges; i.e. a license that permits you to drive within a twelve hour period each day.  For more information contact a Newburyport Drunk Driving Defense Lawyer. 

Case # 5:  A 34 year old Manchester, New Hampshire woman resolved a case charging her with receiving stolen property valued in excess of $250.  Receiving stolen property in Massachusetts is a crime in accordance with Massachusetts General Laws Chapter 266 Section 60.  That law provides that anyone who buys, receives or aids in the concealment of stolen or embezzled property, knowing it to have been stolen or embezzled, shall, if the value of such property exceeds two hundred and fifty dollars, be punished by imprisonment in the state prison for not more than five years, or by imprisonment in a jail or house of correction for not more than two and one half years or by a fine of not more than five hundred dollars.  Here the defendant received a sentence of one year in jail, suspended for two years with a condition that she remain drug and alcohol free and that she make restitution.  Call our office now to hire a Newburyport Property Crimes Defense Attorney.