Massachusetts Criminal Defense Attorney Blog

On March 1, 2013 in Commonwealth v. Doyle, 11-P-1779 the Massachusetts Appeals Court reversed a conviction for Malicious Destruction of Property Over $250. In Doyle the following facts were presented to a jury: On October26, 2010 Boston Police responded to a call in Dorchester where an ATM machine had been broken into. Upon arrival they encountered an individual who pointed to Doyle. Doyle was carrying a large duffel bag. As officers went towards him he fled. Doyle was caught. The duffel bag was searched. Inside the police found tools believed to be used to break into ATM machines. Doyle was charged with Malicious Destruction to Property Over $250, Breaking and Entering and Possession of Burglarious Tools. The jury convicted Doyle on all counts.

As to the Malicious Destruction charge, Doyle claimed that the district attorney lacked sufficient evidence to establish the element of malice and that there was no evidence as to the value of the ATM machine. The issue of the ATM machine's value was not addressed by the Appeals Court. Instead, the court held that the evidence adduced by the prosecution did not satisfy the element of malice.

Massachusetts General Laws Chapter 266 Section 127 states that anyone who destroys property of another willfully and maliciously is guilty of a crime. If the value of the property destroyed exceeds two hundred fifty dollars the crime is a felony and the potential sentence is ten years in state prison. Malice is ìa state of mind of cruelty, hostility or revenge." In this case the act of damaging the property was done for the purpose of breaking into the ATM machine and nothing more. In other words, damage to the property had to be done in order for the act to be committed. . . at least in the manner Doyle committed the act. The Appeals Court drew its authority from another Massachusetts Appeals Court case, Commonwealth v. Redmond, 53 Mass.App.Ct. 1 (2001). In Redmond, the defendant's goal was to steal computer equipment. To do so, he needed to destroy property (a door, window, alarm system) to get to the property he wanted to steal. This conduct was not deemed malicious, rather it was necessary to achieve his ultimate criminal goal. The incidental or necessary property damage was deemed "the adventitious by-product of a wholly discrete criminal enterprise".

As a Massachusetts Criminal Lawyer I can tell you that anytime there is damage to property incidental to another intended crime, Malicious Destruction to Property is charged. An Experienced Criminal Defense Lawyer will see the duplicative unsupported charge and immediately move to have that count dismissed. Keep in mind that any conviction can adversely impact someone's future and eliminating all counts possible in a complaint cannot be overlooked.

Continue reading "Massachusetts Appeals Court Explains Element of Maliciousness as it Reverses Conviction for Malicious Destruction of Property Over $250 " »

According to a report in the Brockton Enterprise, Dery Moeda of Brockton, Massachusetts has been indicted by a Plymouth County grand jury for Home Invasion and related Massachusetts Violent Crimes. It is alleged that Moeda broke into a home on October 11, 2012 around 7:30 in the morning. While in the home he placed a gun against a thirteen year old girl's head, telling her to remain silent while the apartment in which she lived was searched for nearly one hour. Apparently Moeda and his cohorts were looking for money they believed to be in the home. The girl identified Moeda through a photo array. In addition to Home Invasion, Moeda has been charged with Kidnapping and Larceny Over $250. The case is being prosecuted in the Brockton Superior Court.

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Plymouth County Kidnapping Defense Law Firm

Brockton Criminal Defense Lawyer, Home Invasion, Larceny

Whenever a Massachusetts Criminal Lawyer defends a case like this one the photographic identification process gets scrutinized. I always want to know what the victim saw and how strong her identification of the suspect was prior to her being presented with the photographic array. The identification itself and the photographic array get introduced into evidence unless the defendant's lawyer is able to show that this aspect of the identification process was unnecessarily suggestive and that the identification itself was tainted because of it. The burden is on the defendant to show by a preponderance of the evidence that given the totality of the circumstances the identification process was so "suggestive and conducive to irreparable misidentification as to deny the defendant due process of law". While this task is difficult and arguably unconstitutional given its burden shifting application, recently the Massachusetts Supreme Judicial Court established an advisory protocol to help ensure against abuse. This would require law enforcement to make it clear to the witness that the person who committed the crime may or may not be in the array. The witness should also be advised that it is just as important to clear someone as it is to identify someone. Additionally, the witness should be told that the individuals depicted in the photographs might appear different than they did at the time of the crime and that regardless of whether or not an identification is made the investigation will continue. The procedure shall also ask the person making the identification to state the degree of certainty he has in selecting the photo.

When this procedure is not used in accordance with the Supreme Judicial Court's recommendation I usually ask the trial judge to incorporate in the jury instructions language that reflects law enforcement's failure. I view a significant percentage of out of court photographic identifications as unreliable and suggestive. This is certainly something worth litigating in Massachusetts Criminal Cases.

Continue reading "Brockton Man Indicted for Home Invasion, Kidnapping Identified by 13 Year Old Victim" »

Framingham, Massachusetts police responded to a call on Route 9 early yesterday morning after a security guard at a local apartment complex heard a car crash. When officers arrived they found seventeen year old Jefferson Deandre behind the wheel of a stolen Camry. Another unnamed passenger was observed in the back seat suffering from what have been described as serious injuries. The incident occurred sometime around 2:30 in the morning. Another passenger, Joel Figueroa fled into the woods where he was apprehended by the police. Figueroa also sustained injuries. During interrogation by the police Deandre admitted to stealing the car. He provided the location from where he had taken the vehicle as well. He was subsequently charged in the Framingham District Court with Receiving Stolen Property Over $250, and Larceny of a Motor Vehicle. Figueroa was charged with variations of the same crimes.

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Car Theft Defense Law Firm in Massachusetts

Massachusetts Larceny Defense Lawyer

Larceny of a Motor Vehicle in Massachusetts is a felony pursuant to Massachusetts General Laws Chapter 266 Section 28(a). The law states that anyone who knowing steals a motor vehicle can be punished by up to fifteen years in state prison or up to two and one half years in the house of correction. Here is an interesting aspect to this law. The charges cannot be continued without a finding. For people convicted for a second or subsequent such offense there is a mandatory minimum one year jail sentence. To prove someone guilty of this crime in Massachusetts the prosecution must prove beyond a reasonable doubt three elements: 1) that the accused took a motor vehicle; 2) that the vehicle was owned by someone else; and 3) that it was the defendant's intention to do so with the intent to permanently deprive the owner of the vehicle.

Usually Larceny of a Motor Vehicle is charged with the Crime of Use Without Authority. That crime is identified under the same statute. That crime is also known as "joyriding". The punishment for a conviction for joyriding is the same as Larceny of a Motor Vehicle in Massachusetts. The reason that both crimes are charged together stems from the fact that prosecutors may not be certain of the defendant's intent so they want to leave options open. For instance, if the accused is charged with Larceny of a Motor Vehicle only his defense might be that he only intended to drive around in the car and return it later. If the jury believed him he would be acquitted of the Larceny of a Motor Vehicle charge even though he admitted to having committed another crime. Thus, the two are typically charged simultaneously.

There are defenses to these the crimes discussed in this post making it important for anyone accused to hire an Experienced Massachusetts Criminal Lawyer.

Continue reading "Two Massachusetts Teenagers Charged With Car Theft, Another Facing Charges After Stolen Car is Crashed in Framingham" »

Last week Massachusetts State Police and Marlborough Police surveilled 21 Preston Street, the home of Joshua Chevez a twenty year old Marlborough resident. Once Chevez arrived home he was handcuffed. The police then executed a Search Warrant at the residence. During the search authorities located Drug Paraphernalia (digital scales and baggies), thousands of dollars cash and some packaged marijuana. Residue on the scales was confirmed to be cocaine. Officers also seized cell phones, cars and a laptop. While detained Chevez confessed to Selling Marijuana and Distributing Cocaine. He stated that he sold around two ounces of cocaine per week to Marlborough residents. Chevez admitted that he buys his product from a Drug Dealer in Lynn, Massachusetts and a Drug Dealer in Lawrence, Massachusetts. Chevez also confessed to Distribution of Marijuana. He was charged with a School Zone Violation, Possession With Intent to Distribute Cocaine, Drug Conspiracy and Possession With Intent to Distribute Marijuana. Chevez defaulted on his arraignment and a warrant has issued for his arrest. Chevez has other pending Massachusetts Drug Charges including one in Lawrence for Possession With Intent to Distribute Class B along with some Massachusetts Theft Crimes; Breaking and Entering and Receiving Stolen Property. His cases are pending in the Marlborough District Court and may eventually be prosecuted in the Middlesex County Superior Court in Woburn.

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Massachusetts Drug Distribution Defense Law Firm

Marlborough, Massachusetts Cocaine Charge Defense Lawyer

As I have mentioned in many prior posts, Chevez's first mistake was to talk. Had he not spoken with the police there would have been many more defenses to the Massachusetts Drug Charges he is facing. But he did not. Rather, he confessed to having committed some serious Massachusetts felonies. It is pretty clear that he was release from custody on a low bail due to his willingness to cooperate with the police. While this might appear to be an attractive offer to someone who has just been arrested, it is ill advised to cooperate with the police without proper representation from an Experienced Massachusetts Criminal Lawyer. Neither Chevez nor anyone in his position is capable of working an effective, beneficial cooperation agreement without the assistance of a lawyer. Now, being in default has exacerbated Chevez's problems and he is in need of proper representation. Silence is the best defense to police questioning if you do not have a lawyer advising you otherwise. The large majority of cases that I handle would never have amounted to Massachusetts Criminal Cases had the defendant not spoken with the police. The rule is simple: avail yourself of your constitutional right to remain silent and hire a lawyer immediately.

Continue reading "Massachusetts Man Accused of Cocaine Distribution in a School Zone, Related Drug Crimes, Defaults " »

Last week a woman who lives on Newcomb Place in Taunton, Massachusetts returned home after being away overnight. When she entered her apartment she observed Katherine Lee Ferguson, a Plymouth, Massachusetts resident, naked and cooking breakfast. Ferguson's friend Kyle Timmons of Taunton was also present. It is alleged that the two broke into the home through the back doors. The police arrived to find a relative of the victim chasing Timmons out of the building. Timmons continued his flight and was ultimately apprehended down the street. Ferguson was found in the home, wearing a dress and ring belonging to the victim. Both defendants have been charged with Malicious Destruction to Property Over $250 and Breaking and Entering. Timmons also faces a Restraining Order Violation while Ferguson is being charged with Receiving Stolen Property.

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Taunton Breaking and Entering Defense Lawyer

Massachusetts Theft Crimes Defense Law Firm

The most serious statute with which Ferguson and Timmons are being charged is Massachusetts General Laws Chapter 266 Section 17. That law states that anyone who commits the crime of Breaking and Entering a building in the daytime with the intent to commit a felony where the owner is present can be sentenced upon conviction of up to ten years in state prison. The crime is a felony. This type of crime is commonly known as a burglary. Burglaries are considered particularly egregious crimes and judges often impose stiff sentence after someone is convicted of this offense. The word "building" as used in this statute can be equated with a home as is the case here. There must be an intention on the part of the accused to commit either a felony or a misdemeanor along with breaking and entering to satisfy the elements of this crime. Where that cannot be proved prosecutors often charge the crime of criminal trespass. Here, Ferguson's wearing of the victim's dress and ring are sufficient to suggest the intent to commit either a misdemeanor or a felony. The facts are not as evident relative to Timmons.

Defending these crimes can be difficult particularly before a jury. Jurors are typically unsympathetic towards people accused of breaking and entering someone else's property, especially someone's home. In Timmons case the apparent question is "what crime did he intend to commit?". While this might appear defensible from the facts set out in this article I can see where a jury might believe that he was acting as a joint venturer with Ferguson and that he was complicit in helping her steal the ring and dress. Getting caught in the act like this makes trying this quite difficult. I imagine that Timmons and Ferguson will be trying to resolve this case through a plea deal.

Continue reading "Couple From Plymouth, Taunton Charged With Theft Crimes After Breaking Into Home and Getting Caught by Owner" »

Jessica Senter, a twenty four year old nanny working for a Groveland, Massachusetts family has been charged with Larceny Over $250 in the Haverhill District Court. Also charged was her boyfriend, Jukub Councilman. In November of 2010 Senter started work for for the victims in Groveland. She started in a part-time capacity and was awarded a full time job just a couple of months ago. As part of her compensation Senter received a new car and a cellphone. Then, just about a week ago the family noticed that some jewelry was missing. In fact, it was a lot of jewelry, estimated at thirty thousand dollars. It was quickly determined that Senter and Councilman were selling the items at a pawn shop in New Hampshire. More items were found in their possession at the time of their arrest. For this, both have been charged with Larceny Over $250 which is a felony in Massachusetts. Senter however has other problems. Apparently she was convicted of felony larceny last month and sentenced to probation. The victim was also someone for whom Senter worked as a nanny. She was given a suspended sentence. Her conditions of probation included an order to remain free of alcohol and drugs. Senter is a suspect in a similar case in Newburyport.

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Haverhill, Massachusetts Larceny Defense Lawyer

Massachusetts Theft Crime Attorney

So just how much trouble is Senter in right now? That is an interesting question. A lot determines when the jewelry and other goods were stolen from the victim. If it was before she pleaded guilty on the unrelated case a couple of months ago she might have a chance at a reasonable resolution of this case. If the district attorney can prove that she committed these crimes after the probation was imposed then she is in much more trouble. At the very least she is facing the imposition of a one year house of correction on a Probation Violation. As a matter of law, if probation is revoked the judge must impose the original sentence unless the time for which a revise and revoke can be entertained has not expired. Depending on the exact nature of the suspended sentence and the date on which it was ordered Senter may be able to avoid the one year jail sentence.

Here is another interesting aspect to this case. How does the prosecutor prove that the jewelry was stolen after probation was imposed on the case in March? Well, there are two ways. First, the victims can testify as to when they last saw the item and when they then realized it was missing. This can be problematic in that there might be conjecture that would not satisfy the judge that the event occurred after Senter was placed on probation. The second and more effective way to show the time of the theft is to get the pawn shop dealer to provide testimony and records identifying the time and manner in which he came into possession of the jewelry.

Continue reading "Massachusetts Nanny Faces Felony Larceny Charges In Haverhill Court" »

Edmond Wormwood and Billy Adams, both from Maine have been arrested. Both are being charged with Larceny by Scheme for allegedly bilking a ninety two year old Haverhill, Massachusetts man out of ninety thousand dollars. A third suspect, Michael Mills is also being sought in this crime. According to a report on Boston.com the defendants appeared at the victim's home in the winter and offered to do some small jobs. They began with some tree work. They also painted and cleaned the victim's cellar. The work was considered subpar. The victim's bank froze the account after noticing unusual spending patterns. The police were notified. A couple of weeks ago the men were back in this area, getting another check from the victim and trying to cash it. Authorities allege that both Adams and Mills have been involved in other schemes similar to this one. Right now the case is pending in the Haverhill District Court. I would imagine that the Essex County District Attorney's office will prosecute this case in the Superior Court located in Salem, Massachusetts.

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Haverhill, Massachusetts Essex County Defense Lawyer

Massachusetts Theft Crimes Defense Law Firm

Larceny by a Single Scheme is a felony in Massachusetts. The crime is set out in Massachusetts General Laws Chapter 266 Section 30. The law states that anyone who steals over two hundred fifty dollars from a person over the age of sixty-five can be sentenced by up to ten years in prison. If the case is kept in the district court then there is a maximum jail sentence of two and one half years. The "single scheme" aspect of the crime is established through case law. In 1965 the Massachusetts Supreme Judicial Court held that "where it appears that successive takings are actuated by a single, continuing criminal impulse or intent or are pursuant to the execution of a general larcenous scheme, such successive takings constitute a single larceny regardless of the extent of the time which may have elapsed between each taking."

The obvious question to answer in this case is whether or not the services provided by the defendants could have reasonably supported the ninety thousand dollars that victim paid. There is no doubt that tree work, painting and cleaning the basement do not warrant that high a bill. If the defendants performed remodeling work that might change things somewhat. That defense would require them to show payment for supplies and perhaps a contract verifying the agreement between them and the victim. The comment that the workmanship was subpar is subjective and it would be difficult to have an opinion as such entered into evidence. The defendant's biggest problem is that the victim is ninety two years old. No judge or jury will have sympathy for these guys if it looks like they took advantage of an elderly person. The Essex County District Attorney's office has a page on its website identifying its position on elder abuse. Their position suggests strongly that if these men are convicted for committing this crime they will be going to state prison for a significant time period. This makes their selection of a Massachusetts Criminal Lawyer particularly important.

Continue reading "Three Men Charged With Larceny by Scheme for Charging Haverhill Massachusetts Man $90,000 for Minor Home Repairs" »

Back in early February Hingham, Massachusetts Police responded to a call for a dispute between a landlord and her tenant. Officers were advised that the woman had several aliases and was using multiple identities. An ensuing investigation showed that the woman, Wanpen Florentine had multiple birth dates, a couple of Massachusetts drivers' licenses and perhaps more than seven names. Florentine was registered to vote under two difference names. Last week Florentine was arrested and charged with various Fraud and Identity Theft crimes, five of which are felonies. This past Monday a Search Warrant was obtained and Florentin's home in Hingham was searched. The defendant is sixty two years old. She is being held on one hundred twenty five thousand dollars bail.

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Massachusetts Identity Fraud Crimes Defense Lawyer

The Massachusetts Identity Theft statute is G.L. c. 266 §37E which states that anyone who poses as someone else without that person's permission and uses that identifying information to obtain goods, money or other items of value, or uses that identifying information to harass someone else is guilty of a misdemeanor. The punishment for a conviction for this offense is no more than two and one half years in the house and the possibility of a fine of up to five thousand dollars. Interestingly enough, it does not appear that the defendant in this case has been charged with this offense. Instead, she has been charged with Fraud related Motor Vehicle Crimes that are felonies, meaning that there is a possibility that the defendant will be indicted and could face a state prison sentence. Obviously the district attorney believes that her actions were serious enough to warrant prosecuting pursuant to other statutes.

Identity Theft is becoming rampant in this country. It is estimated that over nine million people are the victims of some sort of identity theft crime every year. The danger to fraud victims is real and may not be realized for years. Victims of this type of criminal activity may be denied job opportunities, loans and are sometimes arrested for allegations that they committed crimes that they in fact never committed. We have represented many people who have been charged with Crimes in Massachusetts who never actually committed these crimes. The people who stole their identity were the actual perpetrators of the crime. You can imagine the surprise and shock to the accused in these cases when they are arrested for drug offense, theft crimes or crimes of violence that they never even heard about.

Continue reading "Hingham Massachusetts Woman Arrested, Charged With Identity Theft, Fraud" »

Carmen Beltre of Lawrence, Massachusetts disappeared in mid January following the release of information that she was one of about fifty people being charged in a Federal Identity Fraud Scheme. It is alleged that Beltre and others accessed and distributed false documents such as birth certificates and Social Security cards. Last summer Beltre was arrested on several Massachusetts Motor Vehicle Crimes including Operating with a Suspended License, Operating Uninsured and Attaching Plates. During the booking process Beltre was found in possession of various Social Security numbers, immigration papers and a "suspicious" list of names. Beltre claimed that she worked for the government and that the information found in her possession was job related. Authorities turned this information over to the Essex County District Attorney for investigation and charges were filed. Beltre was held at the Wilmington, Massachusetts Police Department awaiting arraignment in the Federal District Court for the District of Massachusetts.

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Massachusetts Federal Criminal Defense Law Firm

While the article is silent as to what crime Beltre is charged with I would imagine that she is accused of violating 18 U.S.C. 1028(a)(7) which states that it is a crime for anyone to knowingly transfer, possess or use someone else's identification with the intent to commit an act that constitutes a violation of Federal or State law. The punishment for a conviction varies depending on the circumstances in which the fraud was committed. For instance, if the identity fraud implicated drug trafficking activities then the statute authorizes a twenty year prison sentence. If it involves terrorism then a thirty year sentence can be imposed. In Beltre's case the accusation is unclear however if drugs are not involved I would imagine that the maximum sentence is fifteen years. The statute in this situation might permit a sentence of probation making it necessary that Beltre's Massachusetts Federal Criminal Lawyer be experienced in these matters. Beltre's sentence in large part will depend on the Federal Sentencing Guidelines. Factors that will come into play are her age, criminal record, involvement in the Identity Fraud Scheme, level of obstruction with the investigation, ultimate cooperation and extent of her acceptance of responsibility. Or, perhaps this is the type of case that will be tried before a jury.

One more thing came to mind when I first read this article. As is the case here, a tremendous number of Massachusetts Criminal Cases start with Motor Vehicle Stops. Beltre's arrest for the Motor Vehicle Offenses permitted the officers to search her incident to her arrest. Under Massachusetts and Federal law they were also permitted to conduct a limited search of her car. Suppressing these searches would be extremely unlikely given the circumstances addressed in this article. I am always amazed at just how often people involved in major crimes commit minor motor vehicle infractions that precipitate Searches and Seizures. This stupidity at times makes the job of law enforcement officials ridiculously easy.

Continue reading "Lawrence Massachusetts Woman Apprehended, Charged In Identity Fraud Scheme in Massachusetts Federal Court" »

Two days ago the Massachusetts Appeals Court handed down its decision in
Commonwealth v Renaud, 11-P-382. The facts in Renaud are as follows:

There was a breaking and entering in Falmouth, Massachusetts. No one was home. Television sets and a DVD player were stolen. The police arrived to investigate and found an electronic bank card bearing Renaud's name on it. Renaud was not known by the victims. Renaud lived in Falmouth, a fact known to the police. The police called him the next day and told him that someone found his bankcard on the side of the road. He was further told that he could pick it up at the police station. Renaud responded that he did know that it was missing. He elected not to go to the police station. The case went to trial. Renaud was convicted based almost exclusively on the fact that his bankcard was found in the victim's home. Reversing the conviction the Massachusetts Appeals Court stated that "ownership of [the bankcard] cannot allow a factfinder to conclude beyond a reasonable doubt that the owner of the card was in possession of it during the commission of a crime". As to the bankcard itself, the court made the observation that "[i]dentification cards are common currency of everyday life. They are also portable objects that can be lost, stolen, or transplanted by others." In the circumstances of this case the trial judge should have allowed the defendant's Motion for a Required Finding of Not Guilty and entered a verdict of Not Guilty.

The standard in Massachusetts for sustaining a prosecution is whether the evidence introduced up to the time the Commonwealth rests its case, "viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt". Thus, when reviewing claims for sufficiency of the evidence Massachusetts Appellate Courts pay no attention to any evidence that follows the Commonwealth's case. For instance, if the defendant puts on evidence that evidence has no bearing on the challenge for insufficient evidence provided that the defendant has moved the Court for a Required Finding of Not Guilty after the district attorney rests his case.

In this case Renaud's trial lawyer did a great job preserving this issue for appeal. The trial judge should have entered the required finding of not guilty after hearing the motion. The appellate attorney then did a fantastic job articulating the basis for the appeal to the Appeals Court. This case demonstrates the importance of hiring an Experienced Massachusetts Criminal Lawyer to represent you at both the trial and appellate levels. The defendant here should be pleased with his decision to hire two excellent lawyers.

Continue reading "Massachusetts Appeals Court Reverses Conviction for Larceny, Malicious Destruction of Property, Breaking and Entering for Insufficient Evidence" »

A thirty one year old Lawrence, Massachusetts man pleaded guilty for the second time in regard to charges of Conspiracy, Larceny and Fraud. The man initially pleaded guilty to twenty six counts of Auto Fraud. He subsequently moved to withdraw his guilty plea alleging ineffective assistance of counsel, a violation of his Sixth Amendment right. That motion was allowed in September of 2010. The defendant subsequently offered his cooperation to the prosecution in its efforts to prosecute auto fraud scandals in Lawrence involving staged car crashes. The defendant would refer the cases to local personal injury lawyers and chiropractors and collect a finder's fee. The victims and the accidents were non-existent. They were all part of a lucrative insurance fraud scheme. In return for his cooperation the defendant was permitted to plead guilty to eleven counts of insurance fraud related indictments. An additional twenty five charges will be dismissed if the defendant successfully completes a period of probation scheduled to last five years.

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Massachusetts Criminal Lawyer

Insurance Fraud, Lawrence Criminal Lawyer, Essex County Criminal Lawyer Salem Superior Court Defense Attorney

This article shows just how important it is to have an Experienced Massachusetts Criminal Lawyer at every stage of the proceedings. In this case the defendant initially pleaded guilty without being properly advised of the consequences his guilty plea would have on his status in this country. In March of 2010 the United States Supreme Court decided the case of Padilla v. Kentucky. There, it held that criminal defense attorneys must advise their clients who are not citizens of this country that their guilty pleas might have certain immigration consequences. Padilla holds that a lawyer's failure to properly advise his client of these consequences constitutes a deprivation of the right to effective assistance of counsel. Padilla holds that the Sixth Amendment requires affirmative, competent advice regarding immigration consequences. A lawyer's silence constitutes ineffective assistance of counsel even if the immigration warning was read to the defendant by the judge during his plea colloquy. Commentary to the Padilla decision suggest that defense attorneys should be familiar with the basic immigration consequences that flow from different types of guilty pleas, and should keep this in mind in investigating law and fact and advising the client.

The case involving the man in Lawrence shows that getting proper representation applies not just to the result itself but to all consequences stemming from the attorney's representation of the client. This is a perfect example of why it is critically necessary that when you investigate who to hire as your Massachusetts Criminal Lawyer you find out how long the person has been practicing, how many cases of a similar nature he or she has defended and the lawyer's overall experience. Make sure that you are comfortable with you decision. Do not hesitate to ask questions to make sure that the lawyer you are hiring focuses his or her practice on defending the accused.

Continue reading "Lawrence Massachusetts Man, 31, Avoids Jail as Part of Plea Deal for Charges of Larceny, Fraud and Conspiracy" »

Allison Avagianos and Tricia Mendez were both in custody and serving sentences for criminal convictions in Essex County. Avagianos was serving her sentence for Larceny Over $250 and Reckless Operation of Motor Vehicle. Mendez, a Lynn, Massachusetts resident had been sentenced for Assault and Battery, Receiving Stolen Motor Vehicle and Attempting to Commit a Crime. Avagianos, from Salisbury, was due to be released in April of this year while Mendez was scheduled to be freed next week. Both were serving their sentence at the Essex County Sheriff's pre-release center in Salisbury. Three days ago, the women left the institution and walked to a local shopping center. There, they met up with a man who brought them to his apartment. Early Wednesday morning the women were arrested at the man's apartment. The man in whose apartment Mendez and Avagianos were found, Byron Isbell was arrested as well. He has been charged with Aiding and Abetting and Escape. The two women have been charged with Escape. The cases are pending in the Newburyport District Court.

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Massachusetts Criminal Lawyer, Salisbury, Lynn, Newburyport Crimes

Massachusetts General Laws Chapter 2769 Section 16 covers the Crime of
Escape in Massachusetts. The law states that anyone who is incarcerated and escapes or attempts to escape from a penal institution in Massachusetts, or from any courthouse, or from the custody of an officer of a courthouse or penal institution can be punished by up to ten years in state prison. This law also applies to someone who is temporary released from custody but required to return and fails to do so. The crime is a felony. Anyone who harbors an escapee is guilty of being an accessory after the fact and can be sentence to up to seven years in state prison. Since all of these crimes are being prosecuted in the Newburyport District Court the maximum sentence for all defendants is two and one half years in the house of correction.

The crime of Escape from jail or prison is significantly on the decline. One report has this crime declining from 2,583 to 660 in a ten year period nationwide. Some suggest that that the reason for the decline is the construction of more modern facilities built with technology that makes the crime more difficult to commit. Another report states that prison escapes have decline from two percent to one percent over a ten year period. The vast majority of escapes are known as "walk aways", people serving sentences at community corrections facilities or minimum security jails. Mendez and Avagianos would fall into that category. People convicted of escape in Massachusetts usually serve their sentences in more secure facilities to prevent the repeated commission of the crime. There is also a tendency to sentence escapees to higher sentences as a punitive measure. It is critical that anyone charged with this crime consult with and hire an Experienced Massachusetts Criminal Lawyer. These crimes can be defended successfully.

Continue reading "Two Massachusetts Women, One From Lynn, the Other From Salisbury, Face Criminal Charges After Escape From Correctional Facility" »

Angel Anaya of Fall River, Massachusetts and Jose Rivera of Lawrence, Massachusetts were arrested early Tuesday night following a brief encounter with the police. According to today's Lawrence Eagle Tribune, an auto theft strike force was working in Lawrence that day. They received a stolen car report for a Toyota. Shortly thereafter, a patrol officer spotted the car in a restaurant parking lot. This took place around 7:30 in the evening. The driver later identified as Anaya hit the officer and fled in the car. A chase ensued. Anaya hit another car as well as a police cruiser and along with his passenger, Rivera, they fled the scene on foot. Rivera was charged with Receiving a Stolen Motor Vehicle, Unauthorized Use of a Motor Vehicle and Resisting Arrest. Anaya was charged with Assault With a Dangerous Weapon, Assault and Battery by Means of a Dangerous Weapon and Failing to Stop for a Police Officer. The cases are being prosecuted in the Lawrence District Court however these matters could be indicted and prosecuted in the Essex County Superior Court in Salem.

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Massachusetts Motor Vehicle Crime Lawyer

Receiving Stolen Motor Vehicle in Massachusetts is a felony pursuant to M.G.L. c. 266 Section 28. The law states that anyone in possession of a stolen car, knowing the same to be stolen is guilty of that offense. The statute permits a sentence of up to fifteen years in state prison or two and one half years on the house of correction. A judge cannot continue a case like this without a finding. Anyone who gets convicted of a second or subsequent offense must serve a minimum mandatory one year jail sentence. Prosecutions for this crime cannot survive attack if it is determined that the district attorney did not prove beyond a reasonable doubt that the defendant had possession of the car, knew that the car was stolen and that he intended to deprive the owner of the car permanently.

In this regard, the district attorney in this case might have trouble proving this crime against Rivera. There is no indication that Rivera knew that the car was stolen. Things that might suggest otherwise are a popped ignition, simultaneous engagement in other illicit activity, particularly Theft Crimes, visible signs of ownership by another or the presence of other stolen motor vehicles. None of this appears present in this case. As a Massachusetts Criminal Lawyer I have had many cases where the charge of Receiving Stolen Motor Vehicle has been dismissed due to an absence of evidence to attribute knowledge to my client. These cases are often difficult for the district attorney to prove, particularly as to passengers. Nor for that matter should evidence of Rivera's flight be compelling. Anaya's actions might well have surprised and scared him. Being present in a car responsible for striking a police officer, getting into a chase and an accident could understandably give people reason to flee. While that action was probably not the best course of action for Rivera it is not a determinant of guilt.

Continue reading "Criminal Charges Filed in Lawrence Massachusetts for Larceny of a Motor Vehicle After Chase, Accident" »

Celina Garcia is an insurance claims adjuster. She works for Liberty Mutual. The thirty-four you old Lawrence, Massachusetts resident is now in some trouble. The Lawrence Eagle Tribune reports that about six months ago Garcia could not get her car started. She had it towed to a shot in New Hampshire and was told that the car had a bad timing belt. Garcia left the car with the mechanic. About two months later the mechanic called Garcia to see what she wanted to do with the car. She told him that she reported the car stolen. The mechanic then called the police. In all, Garcia collected over seven thousand dollars from the insurance company as a result of her false reports. She has been charged with various crimes in the Lawrence District Court; specifically, Larceny Over $250, Insurance Fraud and Filing a False Police Report.

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Massachusetts Fraud Defense Law Firm

Larceny Over $250 in Massachusetts is a felony. The crime is set out in Massachusetts General Laws Chapter 266 Section 30. A conviction for this offense carries a possible five year state prison sentence. More likely than not Garcia has no criminal record so it would not surprise me to see this case remain in the district court. There, the maximum sentence a judge can impose is one year in the county jail. I would imagine that Garcia will receive no more than a continuance without a finding with an order of restitution to the insurance company.

The crime of Larceny in Massachusetts is defined as the unlawful taking and carrying away of personal property of another with specific intent to deprive person of property permanently. The property in this case is that of the insurance company. If the reported facts are true and comprehensive then Garcia's defenses are limited. However, here is what catches my eyes. Garcia is in the insurance business. She is a claims adjuster. She knows how insurance claims are investigated and defended. She, more than anybody would know the pitfalls and dangers of engaging in this type of criminal activity. She would also be cognizant of just how easy it is to get caught committing this type of crime, particularly if it was done as suggested by this article. Moreover, why would she admit to the mechanic that she was filing a false insurance claim. It makes no sense. There is no indication that Garcia knew this man. So why would she trust him with her confession to having committed a felony? How would this benefit her? What would she have to gain by telling this to someone? As is the case in any criminal matter the facts need to be examined more closely, something I am sure that Garcia's Massachusetts Criminal Lawyer will do.

Continue reading "Lawrence Massachusetts Woman Charged With Insurance Fraud, Filing a False Police Report, Larceny Over $250" »

James Hughes is fifty one years old. He lives in Dracut, Massachusetts. According to a report in the Lawrence Eagle Tribune Hughes is now facing charges of Larceny From a Person Over Sixty Five Years Old, and Credit Card Fraud. The case in pending in the Peabody District Court. The article states that Hughes lived in a condominium complex with his mother. The victim lives in the same complex. She trusted Hughes with her credit cards to do errands for her. It is alleged that he used the cards to finance gambling trips and for personal purchases. The credit card charges exceed forty eight thousand dollars. Some of the charges to the credit cards were incurred while the woman was in a nursing home.

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Essex County Fraud Defense Attorney

The article goes on to say that Hughes lawyer will be arguing a Motion to Dismiss the charges, perhaps sometime today. Motions to dismiss are practical tools a Massachusetts Criminal Lawyer will often use to get rid of a case that never should have been filed in the first place. These motions have become particularly popular in the last ten years, since the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. DiBennadetto, 436 Mass. 310 (2002). In DiBennadetto, the Court held that a motion to dismiss, is the appropriate and only way to challenge a finding of probable cause. Clerks are bound by the tenets of Massachusetts General Laws Chapter 218, Sections 35 and 35A establishing the requirement of probable cause before a criminal complaint can be issued. DiBennadetto says that this can be challenged. After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate. These motions can also be filed on the basis that there was a violation of the integrity of the Clerk's Hearing proceeding or for any other reason deemed necessary to challenge the validity of the complaint. These motions work, particularly when argued before a judge who knows and applies the law.

In the event the motion fails, Hughes will have to defend some very serious charges. Larceny From the Person, Massachusetts General Laws Chapter 266 Section 25 carries a potential five year state prison sentence regardless of the victim's age. It is a felony. Credit Card Fraud is a violation of Massachusetts General Laws Chapter 266 Section 37C. This too carries a possible five year state prison sentence. What separates this case from routine larceny cases is the age of the alleged victim and the amount of money taken from her. Over forty eight thousand dollars is the alleged amount of the theft. This is considered very high by itself. It might be considered exorbitant if the amount represents a substantial of the woman's life savings. District attorneys fight hard to protect the elderly and judges tend to punish those who victimize the elderly more severely than they might in instances where the victim is younger.

Continue reading "Lawyer For Dracut Massachusetts Man Accused Of Larceny Files Motion To Dismiss Complaint In Peabody District Court" »