Criminal Defense Results

Assault and Battery

Pretrial Probation Obtained for Client With Felony Charge

June 14, 2014

In June 2014 I obtained pretrial probation for a client with a felony charge of Assault and Battery on a Person Over 60 Years Old after persistent negotiations with the District Attorney’s Office in the Framingham District Court. Pretrial probation is generally considered the best disposition that can be obtained short of a not guilty verdict following a trial or an outright dismissal. This is because pretrial probation does not require that the defendant admit to the crime and give up his right to a trial. The case is simply continued for a length of time, and the defendant may be required to complete certain conditions of probation during that time. If the defendant completes any required conditions and is not charged with other crimes during the pretrial probation term, the case is dismissed. Most judges will not grant pretrial probation unless the prosecutor agrees to the disposition, following the Supreme Judicial Court’s decision in Commonwealth v. Cheney, 440 Mass. 568 (2003). Therefore, if pre-trial probation is the desired disposition, the defense attorney must convince the prosecutor that the defendant is a worthy candidate. In my experience, pretrial probation is becoming increasingly difficult to obtain, perhaps because prosecutors are unwilling to “gamble” that the defendant will not re-offend. In this case, even though the defendant was an ideal candidate for pretrial probation because he had no record and the victim was unharmed and wanted the case dismissed, it took six months of negotiations before the Commonwealth agreed to pretrial probation.

Criminal Case Dismissed Half-Way Through Trial

May 5, 2014

Last week I won a trial in the Ayer District Court after the judge granted my Motion for Required Finding of Not Guilty half way through the trial. My client was charged with Threatening to Commit an Assault and Battery against another person in Ayer, Massachusetts. After the prosecutor was finished presenting his evidence against my client, I filed a motion in which I argued that he had failed to present enough evidence that would permit the jury to legally find my client guilty of the charge. The judge agreed and dismissed the case.

A Concord District Court Jury Found My Client Not Guilty of Assault and Battery

October 13, 2013

My client had been accused of assault and battery by her ex-husband when she allegedly pushed him after their son’s basketball game. The incident occurred in Concord, MA after a high school basketball game. Numerous witnesses testified that she pushed the ex-husband only in order to protect her son, and therefore the contact was legally justified. Other witnesses, including the couples’ children, testified that the ex-husband had planned to confront my client after the game, and provoke an argument. After a quick deliberation, a jury returned a verdict of not guilty.

Defense-Of-Another Successful in Another Assault and Battery Case

September 13, 2013

Police had arrested my client for assault and battery after his daughter-in-law had called the Stow, MA police and reported that he pushed her during an argument at his house. During the trial at Concord District Court I was able to demonstrate that my client had justifiably pushed his daughter-in-law in order to protect his wife. Defense of another, like self-defense, is a complete defense to assault and battery. I emphasized that the daughter-in-law had given considerably different accounts of the incident to the police and at trial, and that these different accounts undermined her credibility.

In August 2012, I Obtained “Pre-Trial Probation” for My Client, Who Was Charged With Domestic Assault and Battery

August, 2012

Pre-trial probation, sometimes also called a “general continuance,” allows the defendant to avoid pleading to the charges, or going to trial. Instead, the case is suspended for a period of time, and if the defendant avoids any further trouble, the charges are dismissed. To my client this disposition was critical, because he had a job that entailed frequent background checks by potential employers. Admitting to the charge would result in significant damage to his business. Once he was off probation and the case was dismissed, the employers were no longer able to find out about the charge.

In October 2011 a District Court Jury Found My Client Not Guilty of Assault and Battery With a Dangerous Weapon (A Shod Foot)

October, 2011

My client had charged with assault and battery with a dangerous weapon after a neighbor told police that she had kicked another person in her driveway. At trial, I was able to demonstrate that my client had physical limitations that would have prevented her from kicking someone. I also emphasized that the neighbor who had allegedly witnessed the incident had a bad relationship and that her view of the incident would have been obstructed, thereby calling into question the veracity of her testimony.

Breaking and Entering

Good Result Obtained for Client Charged With Receipt of Stolen Property and Breaking and Entering

July 13, 2013

My client had been charged with many counts of Breaking and Entering and Receiving Stolen Property, based on the discovery of the items from the automobiles inside his house. After lengthy negotiations with the prosecutor, I was able to secure an agreement to reduce many of the charges from felonies to misdemeanors, and to dismiss the counts for receipt of stolen property. In Massachusetts, a defendant cannot be convicted of both stealing an item, and being in receipt of the same stolen item. This case demonstrates the concept that, even where the evidence of a client’s guilt is overwhelming, there are many ways to improve the result for a client and to make sure that he is not “over charged”—that is, charged with crimes that are more severe than those he actually committed.

Successful Reduction in Charge From a Breaking and Entering in the Nighttime for a Felony (A Felony) to Trespass (A Misdemeanor)

May 13, 2013

In this Ayer District Court case I had filed a Motion to Dismiss the felony charge prior to trial on the grounds that the evidence as set forth in the police report did not support the charge. At the hearing on the motion the prosecutor agreed with my assessment and agreed to amend the charge down to trespass. The case illustrates the importance of ongoing negotiation with the prosecutor up to, and even during, the trial. Sometimes the prosecutor will reduce the charges as an acknowledgment that its case is weak, or because he or she may have a difficult time finding or gaining the cooperation of witnesses. A reduction in the charge can make a huge difference for the client, who may otherwise face a mandatory jail sentence or harsh collateral consequences of a conviction.

OUI Alcohol – Operating Under the Influence of Alcohol

OAS After OUI Charge Dismissed in Concord

November 12, 2013

My client had been charged with Operating a Motor Vehicle with a Suspended License in the Concord District Court. Her license had been suspended due to a conviction for Operating Under the Influence of Alcohol, and therefore she faced a mandatory jail sentence of sixty days if convicted. However, I was able to get the complaint dismissed by showing that the engine of the scooter she was driving was not large enough to meet the definition of “motor vehicle” under the statute. This case illustrates the importance of examining the “elements” (that is, the precise issues that the Commonwealth must prove ) of each crime in order to determine whether there is sufficient evidence for the Commonwealth to succeed a trial. In this instance, the Commonwealth could not prove that the scooter was a “motor vehicle,” and therefore it was possible to get the charge dismissed without going to trial.

Ayer District Court Judge Allowed in Part My Motion to Suppress a Search Warrant

August, 2013

My client was taken to the hospital after a serious automobile accident that occurred in Ayer, MA. He was charged with Operating Under the Influence of Alcohol in Ayer District Court after the police seized his blood from the hospital and tested it for the presence of alcohol. I moved to suppress the warrant on the grounds that the description in the warrant of the location that the police were authorized to search did not include the building where the blood was seized. The judge agreed and suppressed this evidence.

In October 2009 a Middlesex County Superior Court Jury Found My Client Not Guilty of Operating Under the Influence of Alcohol

October 10, 2009

The case was “indicted” by the Commonwealth because my client had received several prior OUI convictions. At trial, I was able to show that my client did many things that were inconsistent with intoxication and was very cooperative with the police. I was also able to show that, while perfectly sober, my client had red eyes and speech that was difficult to understand and therefore these attributes noted by the officers were not indicative of intoxication. The trial was also notable because my client had been sitting in a parked car not far from his house at the time the police officers approached him, as opposed to driving a moving vehicle. Finally, the officer who arrested my client had later been fired by the police department for off-duty improprieties. Prior to trial I filed a motion for permission to ask the officer about the circumstances of her termination. The judge did not allow me to ask that question, but did allow me to ask the officer whether she still worked for the police force.

In July 2006 a Concord District Court Judge Found My Client Not Guilty of Operating Under the Influence of Alcohol

January 9, 2006

The Concord, MA police officer had pulled over my client after he had run a red light. My client admitted to having a few drinks that night, but insisted that he was not intoxicated. He performed the field sobriety tests well, but not perfectly. The case exemplifies the point that the client may want to waive his right to a jury trial and have the case heard by a judge when the Commonwealth does not have much evidence of intoxication.

OUI Drugs – Operating Under the Influence of Drugs

Reasons for OUI Drugs Dismissal

September, 2004

My client was charged with an offense of Operating Under the Influence of Drugs 5th Offense. In order to prove OUI Drugs in Massachusetts, the Commonwealth must present sufficient evidence that the defendant was under the influence of one (or more) of four categories of drugs (marijuana, narcotic drugs, depressants, or stimulants), and that as a result his or her ability to operate a motor vehicle safely was impaired. It is more difficult to prove OUI Drugs than OUI Alcohol because the Commonwealth often lacks direct evidence of the concentration of drugs in the defendant’s system. Usually, they must rely on circumstantial evidence, such as the way the defendant was behaving at the scene, and on the results of an examination by a “drug recognition expert” (DRE). However, DRE’s are usually police officers with special training, and are not medical personnel. Judges can exclude their opinions from trial because the methodology used to arrive at the opinions lacks scientific reliability. In my case, the DRE was prepared to testify that my client was under the influence of a narcotic. I had filed a motion to exclude the DRE’s opinion; however, before the motion was heard the Commonwealth agreed to dismiss the OUI Drugs charge. While the prosecutor did not state her full reasons for dismissal, I believe it was because either (or both) there was no evidence that my client was under the influence of drugs while he was driving (the police found him after he had pulled over and was out of his car); and because the chemical analysis of his blood did not corroborate the DRE’s opinion.

A Concord District Court Judge Allowed My Motion to Keep Out Testimony From a “Drug Recognition Expert” at Trial

January, 2014

My client was charged with Operating Under the Influence (OUI) of Drugs in Concord, MA. The prosecutor informed me that she intended to rely on testimony from a “Drug Recognition Expert” to prove that my client was under the influence of drugs at the time she was pulled over. I filed a motion to exclude this testimony from trial because the expert had never actually interviewed my client, and had never performed any of the 12-step protocol that is necessary to form a proper opinion about whether someone is intoxicated due to drugs. The expert did not even interview the police officers who arrested my client. Because the motion to suppress was allowed, the Commonwealth agreed to dismiss the charge of Operating Under the Influence.

Possession of Drugs

Two Criminal Cases Dismissed Based on Commonwealth’s Failure to Produce Evidence

April, 2014

In two different cases pending in Concord District Court a judge allowed my motion to dismiss under Rule 14 of the Criminal Rules of Procedure based on the prosecutor’s failure to provide drug certifications. In both cases, my clients were charged with possession of illegal drugs (one occurred in Lincoln, the other in Maynard). In order to prove drug possession cases, the Commonwealth usually has the substance in question tested by a laboratory operated by the State Police. After the substance is tested, the lab produces what is referred to as a “Drug Certification” identifying the substance and its weight. In both cases, the prosecutor failed to produce the Drug Certifications even though the cases were over a year old, and the case had been repeatedly rescheduled to give the Commonwealth more time. The judge’s rulings demonstrate that a Court can and will dismiss a case based on the prosecutor’s failure to provide requested evidence.

Ayer District Court Judge Allowed My Motion to Suppress Evidence (Drugs) Recovered as a Result of a Stop and Search of My Client by the Police

November, 2012

The police officer testified at the motion to suppress hearing that he stopped my client and another person as they were walking down the street because he saw one of them hand something to the other one and deemed it to be a suspicious transaction. The officer proceeded to pull over his police car and question the individuals. They made incriminating responses and the officer discovered illegal drugs in my client’s possession. The judge ruled that the officer lacked reasonable suspicion of criminal activity at the time he first stopped the individuals, and therefore everything he discovered after that time was suppressed. The Commonwealth dismissed the case after the judge allowed my motion.

In July 2012 a District Court Judge Allowed My Motion to Suppress Evidence (Drugs) Recovered as a Result of a Motor Vehicle Stop by the Police

July 13, 2012

The police had received an anonymous tip that my client was dealing drugs. They followed his vehicle and watched from a distance as he and a passenger stopped the car and went into an apartment in a neighboring town. The officers believed this visit to take place in a high crime area. After my client and his passenger returned to the vehicle, the police continued to follow the car and pulled it over on the highway. The judge found that the officers’ stop of the vehicle was not supported by reasonable suspicion. The anonymous tip, coupled with the officer’s observation of the individuals’ visit to an allegedly high-crime area, did not supply the necessary justification to stop the vehicle. The Commonwealth dismissed the case after the judge allowed my motion.

In March 2012 My Client Was Found Not Guilty of a Prior Offense of Drug Possession

March 13, 2012

This was the second part of a two-part trial in the Concord District Court. My client had been found guilty by a jury of possession of cocaine several months before. However, he had been charged with a second offense of drug possession, and therefore the Commonwealth was required to prove that he had received a prior conviction for the same charge. At the second trial, the prosecutor presented evidence that a person with the same name and date of birth as my client had received a prior conviction of drug possession, but the judge agreed with me that this was insufficient to sustain the Commonwealth’s burden of proof and found my client not guilty. The verdict saved my client from serving an additional year in prison.

Probation Violation Proceedings

In July 2011 I Was Able to Negotiate With the Prosecutor to Reduce (“Breakdown”) a Charge From Possession of Drugs With Intent to Distribute in a School Zone, to Simple Possession

July 13, 2011

This was an important achievement, because possession in a school zone carries a mandatory jail sentence of two years. This incident occurred in Maynard, MA, and the case was filed in Concord District Court. This case illustrates the importance of ongoing negotiation with the prosecutor up to, and even during, the trial. Sometimes the prosecution will reduce the charges as an acknowledgment that its case is weak, or because it may have a difficult time finding or gaining the cooperation of witnesses. A reduction in the charge can make a huge difference for the client, who may otherwise face a mandatory jail sentence or harsh collateral consequences of a conviction.

In December 2010 the Judge Ruled That the Probation Officer Failed to Meet Its Burden of Proof in a Probation Surrender Proceeding

December 10, 2010

The probation officer had served a violation notice on my client after he had been charged with an separate crime in another court. If found to be in violation of his probation the client was facing a two-year sentence in the House of Correction. At the hearing, the probation officer relied on the testimony of a police officer who had not been directly involved in the arrest of my client for the new charge. The judge accepted my argument that this testimony constituted unreliable hearsay, and was insufficient to establish probable cause my client had committed a new offense. The judge determined that the probation officer failed to establish that my client had violated probation.