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Yesterday the Massachusetts Appeals Court issued its opinion in Commonwealth v. Podgurski, 10-P-2135 holding that the trial judge committed reversible error when she refused to permit the defense to offer its entrapment defense and refused to instruct the jury on the issue. The facts in Podgurski are as follows. In September of 2005 Brockton Police began watching the defendant’s home. On October 5, 2005 an informant arranged a meeting between the defendant and an undercover police officer. This occurred at the defendant’s home. At that time Podgurski sold Percocets to the undercover officer. The next day another controlled buy was arranged, again at the defendant’s home. Surveillance watched the house during the deal. Shortly thereafter Podgurski left his home by car. He was stopped. He was arrested. The car was searched. A significant weight of drugs was found in the car. More than enough to support a trafficking indictment. A Search Warrant was obtained and Podgurski’s home was searched. More drugs were found as was some Drug Paraphernalia. The defendant testified that on the date of his arrest a man who knew through a drug related acquaintance came to his home and gave him Oxycontin and Percocets. Podgurski tried to show that he delivered the drugs because he was afraid for his family in that the person who provided him with the drugs was a member of a motorcycle gang and had coerced him into doing so. The defense tried to show that this person and the informant had also threatened his family. Defense counsel sought to establish that the informant was setting him up in order to get himself out of trouble. The trial judge rejected all defense efforts to introduce such evidence. As to this issue, the Massachusetts Appeals Court stated “Entrapment by law enforcement involves ‘implanting criminal ideas in innocent minds and thereby bringing about offenses that otherwise would never have been perpetrated.'” To establish an entrapment defense the defendant must simply show an inducement by the government to commit the crime. The district attorney must then show beyond a reasonable doubt that either the defendant was predisposed to committing the crime or that there was no government inducement. The defendant is permitted to inquire about the relationship between the government and the informant. Podgurski was denied this right. Podgurski was also deprived of an opportunity to elicit testimony that the informant threatened his family should he not deliver the drugs. The Appeals Court found this too reversible error as it bore on Podgurski’s state of mind. In essence, the defendant was denied his right to present a defense at trial.

Also at trial the prosecutor had the police weigh the drugs on a police scale in front of the jury. The drugs, Oxycodone, weight nearly sixty grams thereby satisfying the requirement for Trafficking Oxycodone over 28 Grams. The defendant objected to this strategy. The Massachusetts Appeals Court held that this was error. The district attorney failed to lay a proper foundation for the admissibility of such evidence. To do so, it must first show that the device is accurate. There must be a showing of proper calibration. This can be done by getting the device tested by a neutral, non-government agency or by using a known object with a know weight as a test for the device.

Read Opinion:

Commonwealth v. Podgurski, 10-P-2135.pdf

As a Massachusetts Criminal Lawyer I am often perplexed at how some judges refuse to apply the law and deny a defendant the right to present a defense. This issue is not that difficult. Podgurski’s lawyer did everything he was supposed to do to. He established that he had a good faith basis for his questions and his defense. The defense of entrapment is an affirmative defense that has its roots in common law. This defense is not new. It has been around for years. The defense contention that Podgurski is not a drug dealer is sound, reasonable and might likely succeed before a jury.

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The Lawrence Eagle Tribune reports that a Police Detective pulled over a car because he saw one of the passengers holding a bag “containing a green leafy substance.” According to the Tribune, based on that observation the Lawrence Massachusetts Police Detective pulled the car, that was filled with what the thought was “marijuana smoke” over. All four occupants were charged with possession of marijuana with intent to distribute and conspiracy to violate the drug laws. The driver faces additional charges including operating after his license was suspended.

Although all of the facts of this case are not known at this time, it appears that based on these facts an experienced Haverhill defense attorney should file a motion to suppress evidence. As most in the criminal law arena are aware, Massachusetts recently decriminalized the possession of marijuana that is under one ounce.

The state and federal constitution provide that individuals have a reasonable expectation of privacy on their person and in their home. This expectation of privacy often extends to drivers and passengers in a motor vehicle. What that means, is that police officers must have probable cause to believe that a crime has been committed or is going to be committed before conducting a search. Even a threshold inquiry, which is considered less intrusive, must be supported by “reasonable suspicion” of criminal activity.

In this case, it appears that an argument can be made that even if the detective saw smoke, that would not be a reason to pull the car over. How would the detective know that the smoke was “marijuana” smoke as opposed to cigar or cigarette smoke? Furthermore, the possession of marijuana under an ounce is no longer a crime but treated like a civil infraction Another are to peruse would be to investigate how the detective was able to see the alleged “bag of marijuana.” It seems that the likelihood of being able to see a clear plastic bag of anything in a moving vehicle, never mind being able to identify the substance is slim to none. Based on the facts available at this time, ti does not appear that the driver was committing any traffic violations. Accordingly, a strong argument can be made that the detective had no legitimate reason to pull the car over. Along the same lines, even if the detective smelled a “strong aroma of marijuana” upon opening the door, that does not necessarily support ordering the occupants out of the car and conducting a search. There is no indication that the driver was impaired, in fact it appears that he was not charged with operating under the influence of marijuana.

In the event that a motion to suppress evidence was filed and allowed, it is likely that would be the end of the case. However, even if the case went to trial these defendants have viable defenses. In order for the Commonwealth to secure a guilty on the charge of possession of marijuana with intent to distribute, they must prove beyond a reasonable doubt that a defendant possessed the substance with the intent to distribute. To prove “possession” the government must prove that the defendant had knowledge of the substance and the ability to control it. Thus, an argument can be made that the individuals that were not “holding” the bag did not have control over the substance. Additionally, in order to prove “intent to distribute” there must be some evidence that the defendants were going to share, sell or otherwise distribute the produce. In most cases large amounts of cash, scales, baggies, customer lists and cell phones are usually confiscated at the time of arrest to support this charge. It does not appear that there was any such evidence in this case.

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Jose Morales, a Salem, Massachusetts resident was serving a two and one half year sentence in the Essex County Correctional Alternative Center in Lawrence. Last night he left the facility. He had served about three months of the sentence, one that would have resulted in his release in about ten months. His sentence was for Defrauding an Innkeeper, Disorderly Person and Assault and Battery on a Public Servant.

The Correctional Alternative Center is also known as the farm. It is located in Lawrence, Massachusetts on the Merrimack River. The grounds are fairly large. Over one half of the property is used to grow produce that feeds the inmates at the various Essex County Correctional Jails and House of Correction. The facility typically houses non-violent offenders suffering from substance abuse problems. There are no sex offenders or violent criminals housed at that location. The facility offers all types of substance treatment programs and work release programs. The jail houses about three hundred inmates. More than a third of these people perform community service.

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Lawrence Massachusetts Criminal Lawyer

Escape in Massachusetts is a violation of Massachusetts General Laws Chapter 268 Section 16. The crime is a felony and is punishable by up to ten years in state prison. It is not often that people in Morales’ position escape or attempt to escape. There are many applications to this statute. It applies to people being detained while awaiting trial. It applies to people on work furloughs. It does not apply to escapes from police station holding cells. It is also critical that the custody of the defendant is lawful custody at the time of the escape for the crime to survive sufficiency challenges. The invalidity of confinement however is not a defense to this crime. For instance, if the defendant was entitled to parole but did not get paroled, his escape cannot be justified.

Serving sentences in minimum security facilities in Massachusetts is often considered a privilege among those in the criminal community. There are no bars or cells in the conventional sense. You can see the inmates moving about the grounds when you drive by. There are no fences isolating the facility. The stay at these institutions is usually short. There is every incentive to remain there to serve out the sentence.

Most likely Morales will get caught. When he does he will have to defend against felony charges. One thing is pretty certain. If he gets convicted of escape, his next stay will be at a facility that has bars, cells, limited movement and few privileges. His sentence will also probably exceed, perhaps substantially, the sentence he was serving at the Farm. Furthermore, he will still have to finish serving the sentence he was serving at the time of his escape. This escape just made matters significantly worse for him.

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Just last week four Massachusetts residents attending school at Bridgewater State College were arrested for their involvement in serious drug activities. The four, Tyler Trainor of Saugus, Bradley Head from Worcester County, Eric Eldred of Methuen and Patrick McGirr were living in an off-campus house. Local drug enforcement officers had been watching the place for over one month. Once they believed they had enough information officers applied for and were granted a Search Warrant. On Thursday they searched the home located at 11 Perkins Street, in Bridgewater. During the search they found Marijuana, Cocaine, Percocets and over seven thousand in cash. McGirr has been labeled the brains behind the operation and bail for him was set in the amount of twenty five thousand dollars cash. He is being charged with Trafficking Cocaine, or Trafficking Marijuana or both. Right now the case in pending in the Brockton District Court however this case will most likely be prosecuted in the Plymouth County Superior Court.

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Brockton Massachusetts Drug Crimes Lawyer

Defending college students accused of committing serious Massachusetts Drug Crimes is often the most emotionally challenging task Massachusetts Drug Crimes Lawyers take on. Parents proudly drop their children off at college expecting them to make friends, participate in sports, make life-long professional connections and study. It is always a shock to parents when they hear that their son or daughter has been arrested for a serious drug offense such as Trafficking Cocaine or Trafficking Marijuana at the same time that he or she was attending college. Parents never see this coming and they assume that this, being a first offense will result in some sort of reprimand, possibly expulsion from school. What they can never understand is that their child is at risk for a jail or state prison sentence, one that will perhaps result in fifteen years of incarceration.

So what usually happens in cases like this one? That depends on the level of involvement for each individual defendant. It also depends on the viability of defenses available to each defendant. For instance, in this case the district attorney made clear his belief that one of the defendants was the ring leader. If he does not have decent defenses to the charges and he tries to plea bargain, the deal he will be offered by the prosecutor will probably not be as favorable as it might be to one of the other defendants whose involvement was significantly less. You have to keep in mind that judges lack the power to reduce charges involving minimum sentences. Only the district attorney can reduce the charges. In this situation there is great value in hiring an Experienced Massachusetts Drug Crimes Lawyer, who, when all else fails can possibly negotiate a much lesser sentence than the one the accused is facing. In many cases like this the defendants with lesser involvement or with stronger defenses will have a better chance of walking away without jail time.

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Massachusetts General Laws Chapter 278 §8A provides a defense to someone who is being prosecuted for Murder in Massachusetts. The law states that it is a recognized defense for anyone who is the occupant of a dwelling and is charged with killing someone who was not lawfully in the home so long as he acted with the reasonable belief that this person was about to inflict death or great bodily injury on him or on someone else who was lawfully in the home. This law does not require a duty to retreat. Even though this is a defense to the most serious crime in Massachusetts there are some extreme limitations to its use. The Castle Law takes root in English Common Law where a belief was held that “one’s home is one’s castle”. Some states apply the doctrine to places outside of the dwelling. For instance one’s car or workplace are in some states considered sacred ground making available the defense.

In Massachusetts the Castle Law does not apply to a killing committed in the defendant’s driveway. This law does not apply to stairs outside of the dwelling. Nor does the law apply to porches attached to the home. Even where porches or stair provide direct access to the home the rule has been held not to apply. In other words, a porch is not an extension of a living room even if that porch is the point of entry to the living room. The Castle Law does not apply to the killing of an invited guest even where the invited guest “launches a life-threatening assault on the defendant”. Massachusetts case law makes clear that the purpose of this law is to permit the use of deadly force against intruders, not invitees. There are instances where the status of the “guest” can change and make his or her presence unlawful. For instance, if the person is ordered to leave and refuses to do so his status becomes that of a trespasser and at that point he is not lawfully in the dwelling.

The decision of whether to instruct the jury with the Castle Law Defense in Massachusetts lies with the judge. The judge is to view the evidence relative to this issue in the light most favorable to the defendant. A failure on the part of the defendant’s criminal defense attorney to ask for an instruction on this defense might result in a reversal of any conviction if the facts of the case warranted such an instruction. Once again this shows just why when hiring a lawyer you need to find someone with experience. For any criminal case, particularly the more serious criminal cases your lawyer should be someone who focuses exclusively on criminal defense. You do not want to take any chances with someone who merely dabbles in criminal defense work. You want a lawyer who is in court every day, defending the accused and working with and against the prosecutors.

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A forty six year old Saugus, Massachusetts man was just charge with Rape of a Child. He was arraigned yesterday in the Lynn District Court. It is alleged that the man was having a relationship with his son’s former girlfriend for a two year period. Apparently, on August 1, 2011 the man’s wife called the police and reported her suspicions. She told authorities that her fourteen year son had been broken up from his girlfriend for about two years but that the girl was a frequent guest at the home after the breakup. The ensuing police investigation revealed the following additional facts:

• The victim admitted to the relationship. She told the police that after she and the defendant’s son broke up the defendant began texting her using a code name;
• The defendant made sexual advances towards her;
• The defendant touched her inappropriately in his car on more than twenty occasions, sometimes in Saugus, sometimes in Lynn, other times in Revere;
• The two had been “caught in the act” by Lynn, Massachusetts police;
• The victim told her friends about the acts;
• The defendant had given the victim gifts;
• Some of these acts occurred at the defendant’s home in Cape Cod where the victim slept over.

The case in currently pending in the Lynn District Court. The case will probably be prosecuted in the Essex County Superior Court in Salem.

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Essex County Rape Of A Child Rape Defense Lawyer

So how do you defend a case like this one? The first thing a Massachusetts Rape of a Child Defense Attorney will want to do is see if the allegations are in any way corroborated by physical evidence. Start with the obvious. Did the victim save the text messages? Do phone records confirm contact between the defendant and the victim? Is there actually a Lynn, Massachusetts Police report confirming the victim’s statement that police caught the two? This in and of itself seems unlikely. If that did in fact occur I would expect the police to have made some sort of arrest and/or have contacted the girl’s family. Can anyone verify that the two were alone for significant periods of time? What if anything did the girl tell her friends and can they confirm the disclosure. Simply denying the allegations before a jury is usually not enough in cases like this to secure an acquittal. However hammering away at lies, exaggerations or gross inconsistencies can make jurors suspicious of the witness’ credibility. The defendant’s lawyer might also want to investigate the alleged victim’s motive to make such statements. There is a suggestion that the defendant endeavored to take care of the girl due to a troubled home life. Did the caretaking stop or was it reduced in any way that prompted the girl to contrive this story?

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According to a representative from the Middlesex County District Attorney’s Office, police officers saw Luis Hernandez, a known drug dealer in the Framingham and Natick areas engage in a drug deal in the parking lot adjacent to his apartment. It is alleged that Hernandez sold to to Gina Stucchi, Jennifer Mackey and Maria Woods, all of whom were in Stucchi’s car. The police followed Stucchi’s car and apprehended them right before they injected Cocaine in the car alongside Route 9. Woods told the police that she bought the drugs from Hernandez. In the meantime, Hernandez had gotten into a car being driven by Geraldine Martinez. Alisha Conti was also in the car. Conti was dropped off. She was later questioned and admitted to buying Heroin from Hernandez. Police then observed a drug deal between Hernandez and an unknown male. Hernandez was arrested. Martinez was questioned. She admitted that there were drugs in the car and that Hernandez kept drugs in a safe in his apartment. The safe was located and inside police found Heroin, Drug Paraphernalia and Cocaine. The charges against the seven defendants are as follows:

Luis Hernandez:
Possession With Intent to Distribute Heroin
Conspiracy to Violate Drug Laws
Resisting Arrest
Distribution of Heroin
Gina Stucchi:
Conspiracy to Violate the Controlled Substances Laws
Distribution of Cocaine
Maria Woods:
Conspiracy
Possession of Cocaine
Possession With the Intent to Distribute Cocaine
Providing a False Name to a Police Officer
Intimidation of a Witness
Geraldine Martinez:
Conspiracy to Violate the Controlled Substances Laws
Possession With the Intent to Distribute Class “B”
Possession With the Intent to Distribute Class “A”
Alisha Conti:
Possession of Heroin
Jennifer Mackey:
Distribution of Class “B”, Cocaine
Drug Conspiracy

William Roberts:
Resisting Arrest
Conspiracy to Violate the Massachusetts Drug Laws
Possession of Class “A”, Heroin
Read Article:

http://www.metrowestdailynews.com/features/x633529259/Framingham-drug-suspects-arraigned

There are some interesting legal issues that spring from this case, one of which was addressed by Hernandez’ lawyer at the arraignment and bail hearing. The Distribution of Heroin charge can only be proved if Stucchi, Mackey or Woods testify against him. They probably will not in that they too face criminal charges thus enabling them to invoke their Fifth Amendment privilege against self-incrimination. It is highly unlikely that the officers’ observations alone are sufficient to sustain this charge. The same applies for the Conspiracy allegation. As to Possession With Intent to Distribute Class “A” Heroin there might be a legitimate grounds for suppression or a required finding at trial. An experienced Massachusetts Criminal Lawyer would be able to show a jury that Martinez, Hernandez’ roommate, is likely the owner of the safe as opposed to Hernandez. This would make proof against him much more difficult and possibly result in a successful motion for a required finding of not guilty.

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Monday night members of the Lynn, Massachusetts Police Department were conducting surveillance near Ida Street and Western Avenue. They observed the driver of a car, later identified as Agapito Rivera of Lynn acting suspiciously. He was looking around as if he were waiting for someone. Within a few minutes another car being driven by co-defendant Juan Martinez of East Boston pulled up. Rivera got into the passenger seat of Martinez’s car. At that time one of the surveillance officers appeared. Rivera then made movements towards the underside of the seat in which he was sitting. The officer then saw money and a plastic bagging in the center console. Rivera was asked to get out of the car. He complied. The officer then found a bag of cocaine under the seat. It turns out that there was in excess of fourteen grams of cocaine in the vehicle. Both Rivera and Martinez were arrested. They have been charged with Trafficking Cocaine Over 14 Grams. The case is currently pending in the Lynn District Court. If the weight of the Cocaine is confirmed at over fourteen grams the district attorney will likely indict this case and the prosecution will take place in the Essex County Superior Court in Salem. Bail for each of the defendants was set at fifteen thousand dollars.

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Lynn, Massachusetts Cocaine Trafficking Defense Lawyer

Anytime I read an article like this one I immediately become suspicious. Were the police conducting the surveillance based on information that focused on one or both of the defendants or was the surveillance being conducted to target a known drug distribution area. The difference is significant to Massachusetts Criminal Lawyers who are defending Rivera and Martinez. In both cases the defense lawyers will be looking to suppress the search by attacking its constitutionality. If the officers were basing their efforts on information supplied to them by an informant the approach to suppression focuses on the credibility of the informant. What was his or her basis of knowledge? Was he or she reliable? Was the information supplied sufficiently corroborated? If the officers were in this area conducting a random surveillance then the focus for an attack on the search centers on the reasonableness of the police officers actions. What exactly did they do when the approached the car? What specifically were Rivera and Martinez doing or appearing to do while the officers approached? What were the officers’ actions? What did the officers say if anything when approaching the car or once they got to the car? Motions to Suppress unlawful police activity are one of the most effective tools that Lynn, Massachusetts Cocaine Trafficking Lawyers can utilize in defending their clients.

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The Brockton, Massachusetts Police gang unit made a stop on Belmont Street Monday night after seeing what the newspaper refers to as “suspicious behavior”. The driver, identified as Paul St. Andre was searched. During the course of the search a large quantity of heroin was located on St. Andre. His two passengers, Kareena Miller of Plymouth and Ashleigh Simpson of Halifax were also searched and found in possession of heroin. All three have been charged with Drug Crimes. St. Andre is facing Heroin Trafficking Charges and a School Zone Violation. Simpson and Miller are being charged with Possession of Heroin, a Class A substance. The cases are currently pending in the Brockton District Court however it is probable that St. Andre will be prosecuted in the Superior Court.

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http://www.enterprisenews.com/news/cops_and_courts/x512664850/Three-arrested-in-Brockton-on-heroin-charges

“Suspicious activity” is not adequate grounds to justify a stop of a motor vehicle and subsequent search of its driver and passengers. There must be more. This article suggests that the police officers were acting on a hunch. Massachusetts courts have held that in order to justify a stop in Massachusetts police must have reasonable suspicion grounded in specific, articulable facts, not a mere hunch. I would be interested in seeing the police report in this case to see if the police had more than is suggested by the article, a mere hunch. It appears that a Motion to Suppress will be one weapon St. Andre and the women will use towards defeating these allegations.

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Jeremy Gardner and Walter Smith have both been indicted by a Middlesex County Grand Jury for charges relating to the death of Gregory Vilidnitsky, a Framingham man. Gardner is from Maine. Smith is from Vermont. According to the Metrowest Daily News both defendants, carpenters, were working in Wayland and had been out drinking near their hotel. It is reported that Gardner was driving a vehicle that struck the victim who was paving at the time. The car then hit an oil truck. Gardner fled and Smith tried to drive the damaged vehicle away. Gardner has been charged with Motor Vehicle Homicide, OUI Second Offense and Leaving the Scene of an Accident. Smith has been charged with OUI Fourth Offense.

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http://www.metrowestdailynews.com/news/police_and_fire/x1732522163/Men-indicted-in-crash-that-killed-Framingham-highway-engineer

Middlesex County Massachusetts Motor Vehicle Homicide Defense Lawyer

The severity of these charges is best evidenced by the fact that both defendants have been indicted for crimes that could be prosecuted in the district court. The most serious charge that Gardner is facing is the Motor Vehicle Homicide charge which is a felony in Massachusetts and carries with it a possible fifteen year state prison sentence. As a Massachusetts Criminal Defense Attorney I would like to know what evidence shows that Gardner was impaired at the time of operation. There is no indication that he took a breathalyzer test nor is there any indication that he took and failed any field sobriety tests. Also why did each defendant accuse the other of operating the car. Eyewitnesses should be able to identify the driver. If they cannot then perhaps this issue will become a point of contention at trial.

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