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Charges Need to be Sorted Out After Six Arrested in Van Containing Ammo/Knuckles

February 14, 2014

brass knucks.jpgCrimes involving "constructive possession," while difficult to prove, are easily charged when one is in the vicinity of something illegal. Guilty or not, you may be arrested and brought to court to defend yourself. Six young men riding in a mini van in Worcester last week will learn this soon in Worcester District Court.

According to Mass Live, a Massachusetts State Police trooper stopped a mini van for civil violations in a section of Worcester known for criminal activity on Saturday morning. The driver of the van, Jorge Luis Deya, did not immediately stop after the trooper activated his lights. In addition, the trooper claims to have seen the passengers "frantically moving" when the van did come to a stop. The trooper called for backup from the Worcester Police Department, approached the driver, and learned that Deya did not have a valid driver's license. The police ordered everyone to get out of the van and then they searched it. Inside, they found brass knuckles, 82 rounds of low caliber ammunition, and a bottle of wine.

Defense counsel will surely explore whether the exit order was a violation of each individual's constitutional right to be free from unreasonable searches and seizures. If one of the passengers had a valid driver's license why wouldn't that individual be allowed to drive away without the exit order and search? Would the events preceding the stop justify the failure to take this course? This must be analyzed.

Of the six occupants, two were 20 years old, three were 18, and one was 17. All, therefore, were adults for purposes of criminal court. None, however, had a license or firearms identification card which would allow him to have the ammunition or brass knuckles and none were old enough to possess wine. And this is not kids stuff. Possession of brass knuckles is a felony punishable by up to five years in state prison. Whether such a sentence is likely or not, a felony conviction itself has far reaching negative consequences. Especially for the futures of young people.

The article does not say where in the van the items were found. At some point this information will be relevant when a judge or jury decides individual culpability. The police, however, simply grouped them all together. And the police probably had no choice. We may safely assume that none of the items were in the actual possession of just one of the men. If they were, then the charges would be brought solely against him.

Many who read these typical stories quickly assume that they are all guilty in one way or another. The same may be said of stories involving underage drinking parties. After all, they must have all known what was going on. The law, however, does not work that way. Each individual is entitled to have his/her case examined with an eye toward a presumption of innocence. And just being there is never enough for a possession conviction.

In order to be convicted of possessing something, the prosecution may attempt to prove actual knowing possession such as having an item in your pocket. In the alternative, they may attempt to prove constructive possession. This will likely be the theory that the prosecution will use in this case.

As such, the prosecution will be required to prove all of the following beyond a reasonable doubt against each individual. 1) The individual had knowledge of the object, 2) the individual had an ability to control the object, and 3) the individual intended to exercise control of the object.

Let's take the example of one rear seat passenger. Where is the actual proof that he knew the objects were in the car? Maybe he saw and heard the others talking about the objects, but there is no proof of that. Even if there were, and even if all of the objects were within his reach, that's not enough for criminal possession. There must be proof that he had an intention to exercise control of the objects. Where will that proof come from? Unless he admitted that to the officers, it will not be susceptible of proof.

Isn't everyone in the car entitle to be presumed to be the person who was just along for the ride with no intention of taking actual possession of the brass knuckles, ammunition, or wine? After all, what would be worse -- letting a guilty party escape punishment, or convicting an innocent one for the sake of preventing that escape? Our law prefers the former.

Even some people who find themselves in this situation have doubts about their own criminal responsibility. Contacting an experienced criminal defense attorney,early, therefore, vitally important.

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Disorderly Conduct Charge for MBTA Train Surfer

red line train.jpgDisorderly Conduct charges were brought in the Quincy District Court against Justin Green of South Boston after he tried to surf a subway train out of the North Quincy MBTA station last Friday.

According to Boston.com, some people in the train apparently saw Green hanging on to the top of a car as the train began to pull out of the station. The driver stopped the train for several minutes in order to get Green back on to the platform. When confronted, Green allegedly said that he had a "God given right to do anything he wants," and that he was only risking his own safety.

Depending on your perspective, he almost had a point. When you first read the story, you may get the feeling that he was doing something wrong, but ask, "what is the crime?" In fact, if not for the stopping of the train and inconveniencing the passengers, I doubt if the disorderly charge would apply. To be convicted of disorderly conduct here, the prosecution needs to prove 1) that Green created a hazardous condition that did not serve any legitimate purpose for Green, and 2) that Green recklessly created a risk of public inconvenience or alarm.

The second element is obvious. Green was attempting to surf at 5:30 p.m. on a Friday, and when the conductors stopped the train of his choice, other oncoming trains were delayed. So, its safe to say that he recklessly created a risk of inconvenience to several passengers on public transit.

The first element is actually not so clear. It may have been hazardous, but by what standard will the court determine whether or not Green's actions served a legitimate purpose for him. He has already said that he had a right to do as he pleased. He obviously considered train surfing his own "legitimate purpose," regardless of whether or not anyone else agreed.

However, since this is a very minor crime punishable by a $150 fine, it is unlikely that the Quincy District Court will delve too deeply into whether the law applies to what the accused believes to be legitimate versus what is objectively legitimate.

This is simply a story that illustrates the elements of a crime that is often used as a catch-all when nothing else seems to apply.


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"Hazing" Related Arraignments for Three Young Men Postponed

honey1.jpgBrighton District Court postponed the "hazing" arraignments of three members of the Alpha Epsilon Pi fraternity last week. The new arraignment date is now June 27. On that day they will be joined by six more young men similarly charged. All of the potential defendants are between the ages of 19 and 22 years old.

According to boston.com, on April 9, 2012 the Boston Police received a noise complaint involving a house in Allston. Their investigation revealed five 19-year old Boston University students in the basement with their wrists bound together by tape. They were clad in underwear and had coffee grounds, honey, hot sauce, and fish sauce dripped on them.

On the second floor, the police found two men that they believed were pretending to sleep. Another young man tried to run away. These are the three men that were in court last week. It is unclear how prosecutors determined just what each of them did, but they were variously charged with violating Massachusetts General Laws chapter 269, section 17 and 18 -- "Hazing" and "Failure to Report Hazing."

Most people are familiar with the term hazing as it traditionally involves arguably bizarre initiation activities at college fraternities. In criminal law, however, when a statute makes certain activities criminal, that statute must specifically spell out just what behavior is punishable by law.

The Massachusetts Hazing Statute defines hazing as conduct involving initiation into a student organization, that willfully or recklessly endangers the physical or mental health of a person. The statute gives these examples. Whipping, beating, branding, forced calisthenics, exposure to weather, forced eating, forced drinking, and the catch-all: "other brutal treatment . . . which is likely to adversely affect physical health or which subjects the person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation."

The statute goes on to specifically exclude "consent" as a defense. In other words, those being initiated may not come to the rescue of hazers by saying that they agreed to their treatment. One man in the Brighton case actually did come forward to say: "I didn't feel victimized at all because it was a rite of passage and a choice that all five of us made together, and we knew we could walk away from it at any time." This is in stark contrast with the prosecutor's description of the hijinks as "inhumane." When hazing makes the news, even minor incidents may get lumped together with some other real tragedies.

Where is the line between a rite of passage and "brutal treatment?" And how can physical activity be "forced" if one agrees to it? Think about wind sprints at a sports practice session or calisthenics at military boot camp . This is an unusual statute. It says that initiators may not force initiatees to do stressful things. And then it says that the consent of the initiatees is not a defense. This is contradictory. If the force makes it a crime how can one accused of the crime be prevented from using lack of force (consent) as a defense?

Furthermore, how is the prosecution going to prove that what the Boston Police found was an initiation ceremony unless someone told them it was? The statute requires this proof and a jury may not convict on speculation.

In any event, if this case actually goes to a trial, I supposed the main issue will be whether or not the accused men did anything that they should have known would put the others at risk of physical or mental harm. I question whether any jury would find that they took chances with the mental or physical health of the others by tying them up and pouring various condiments on them. This is especially true when each marinated man apparently agreed to it and had the option of walking away.

In reality, I suspect that the defendants with experienced defense counsel are negotiating something with the prosecution such as dismissal prior to their arraignments with certain conditions such as community service, etc. This would explain the postponed arraignments for the first three. These men are college students that wish to keep their records clean for their futures. If they are arraigned, then the charges will be entered on their permanent Massachusetts Board of Probation records, and may appear when future employers do background checks. Dismissing the cases prior to arraignment would avoid this.

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Attleboro District Court Arraigns Two Men on Very Weak Charges of Making Columbine-Style Threats

Facebook.jpgThreats charges were read against two former Attleboro High School students at their arraignment yesterday in the Attleboro District court. According to boston.com, 18 year-old Natick Sands and 20 year-old Ryan Ringuette were arrested for having a dangerous Facebook conversation.

According to the prosecutor, Sands was angry about something and said to Rinquette: "People wonder why I talk about random mass killing sprees all the time FED UP." Ringuette responded: "It's Columbine all over again." The prosecutor also alleged that Sands and Ring discussed how to attack Attleboro High School and the school police officer. Foxnews.com, however, reported that "[a] specific target was not mentioned in the discussions, and that school officials did not believe that anyone was in imminent danger."

Since both young men were on probation for unrelated charges, the judge held them without bail pending probation surrender hearings, set bails of $7,500 on the threats charges, ordered them to undergo mental health evaluations, and ordered them to avoid the Internet. They will spend at least the next two weeks in jail, where they will have no trouble avoiding the Internet.

All of that, just for having a conversation on Facebook. Of course, such conversations are not exactly private, otherwise no one would have known about this. But, there is more to their defense than a claim that they were just talking to each other. The charge of "Threat to Commit Crime" like any other charge requires proof of certain elements and there are big holes in this case.

First, there must be proof that these men expressed intents to injure a person or his/her property. The closest thing to this element would be the prosecutor's allegation that they said that they would attack the school police officer. But, if Foxnews.com is correct that no target was mentioned, then there is no case at all. There must be a victim for the crime of Threats.

Second, the threats must have been made under circumstances which would cause the victim to fear that they were willing and able to commit the crime. Again, who is the frightened victim? Even on the absurd chance that the school police officer was that victim, did he/she have a legitimate fear of being "attacked?" I doubt it.

Third and most importantly, for proof of the crime of Threats, the prosecution must prove beyond a reasonable doubt that these two men intended to have a threat conveyed to a victim. Even if a victim existed, this element is completely lacking. These men may not have been having an extremely private conversation, but they were still just talking to each other. Foxnews.com reported that a current Attleboro High School student "saw the discussion between Sands and Ringuette . . . and contacted school officials, who immediately notified the police." Overhearing planned violence, no matter how serious, does not fit the definition of the crime of Threats. If you were eavesdropping and overheard people talking about attacking you, it would not be a threat because they did not intend for you to hear it. Case closed.

If these two were actually making plans to attack the school, then their plans might be considered a conspiracy, but these are Threats charges. And they are extremely weak and unsupported by the allegations contained in news reports. They appear to be the result of overreaction to the reference to "Columbine."

I expect that an experienced criminal defense attorney may have a motion to dismiss filed by their next court date.

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Wrentham District Court Appearances Scheduled for Eight Men "Involved" in Dean College Beating

leg irons.jpgThe Franklin Police Department has brought charges against eight young men that were present during an assault upon a Dean College student on December 2, 2010. The incident took place on the college campus and all of the men were students.

A video recording of the incident shows a man, later identified as Kirk Dudley, delivering a knock-down punch to the victim followed by several more punches as the victim struggled to get back on his feet. Dudley then removed one of the victim's shoes and swung it at the victim's head before taking off the other shoe and departing with the pair. Throughout the video other men can be heard laughing and shouting. Some of them can be seen making hand signs, smiling, laughing, and possibly taunting the staggering victim.

A December 6, 2011 article at MyFoxBoston.com, stated that Dean College learned of the incident shortly after it occurred, and on the following Monday viewed the video that had been posted on line. According to the college's official statement, "[t]hat video has provided additional insight and disturbing views of what transpired." The college also said that the nine students had been expelled, and that the investigation was ongoing.

It appears that the video not only provided insight, but also provided evidence to be used against eight men that were standing by as Dudley did what he did. Today's Milford Daily News reports that the Franklin Police applied for Criminal Complaints against the eight onlookers and that they are scheduled to be arraigned in the Wrentham District Court on April 2. The article states that all eight will be charged with armed robbery and disorderly conduct.

The Milford Daily News article raises several issues. It states that the eight men will be charged with armed robbery, but states that Dudley has been charged with unarmed robbery. This is inconsistent, and it is hard to tell which one is wrong. Without some kind of weapon, there can be no armed robbery. It could, however, be said that Dudley actually committed an armed robbery because he used the first shoe as a weapon in the process of obtaining the second one.

Since the eight bystanders did not actually commit the acts necessary for robbery of any kind, the theory must be that they aided and abetted Dudley. In order for one of them to be guilty of robbery under this theory, the prosecution must prove that 1) he was present, 2) that he knew that Dudley was going to rob the victim, 3) that he shared Dudley's intent to rob the victim, and 4) that he either helped or made himself available to help if needed.

Each of the eight stands in his own position on these issues. What if one or two were just there and remained in the background without saying or doing anything? Should they be charged with robbery? Moreover, should the one or two that made hand signs or laughed loudly be in any worse position? If so, why? Video recording the commission of a crime is not a crime. Laughing at the commission of a crime is not a crime. And failing to intervene on behalf of a helpless victim is not a crime.

Furthermore, can it be proven that any of the eight shared Dudley's intent to take the shoes from the victim? The video does start with a view of the shoes, and the MyFoxBoston.com article does say that Dudley claimed that the victim had stolen the shoes from him. This may indicate that there was some kind of a plan to get the shoes, but as a matter of proof of shared intent with regard to each of the eight, it is a stretch. And what about the man behind the video recorder? Will he also be charged with robbery? Was he there to help steal shoes, or was he just using his cell phone to record a confrontation?

The video is powerful and dangerous evidence in this case. It makes the bystanders look heartless and callous to the point that one viewing the video may become enraged at their behavior. In fact, the first comment posted in response to the MyFoxBoston.com article, appears to come from a man that works on a college campus and he said that "[i]f they were at my school, I would be fired for a baseball bat 'Beat Down' on ALL OF THEM!¬!" So, each of the eight young men, no matter what their individual involvement, will have to overcome this sentiment.

On the other hand, while the college may be correct that the video is "disturbing," a juror's gut reaction to a disturbing video must be set aside and the factual evidence must be evaluated objectively to determine if it supports the crime charged. Moreover, it must be evaluated for each individual charged. After all, these eight young men all acted differently, and they are all being charged with a life felony. (As well as the misdemeanor of Disorderly Conduct).

I have not seen all of the evidence. What I have written here is based upon the news reports and the video itself. Surely, the victim gave a statement. There may be statements from one or more of the eight men as well as statements from other witnesses. In the final analysis, the video will be the most shocking and and most probative evidence. If evaluated fairly, it should actually help exonerate some or all of the eight bystanders.

All crime is bad behavior, but not all bad behavior is crime.

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Patriot Edelman Skates from Groping Charge as Former Bruin Milbury Hit with Roughing Charge

December 17, 2011

There were two local sports figures in criminal law news reports this week. Yesterday, the Boston Globe reported: "Juilian Edelman 'humbled' after charges dropped." Today, the Globe reported: "Milbury sought in Pee Wee altercation."

First up, Patriot, Julian Edelman. On the strength of a woman's allegations that Edleman groped her in a night club, the Boston Police arrested the wide receiver/kick returner/defensive back on November 1. The two had been on the dance floor at the Storyville night club in Boston this Halloween. Edelman was dressed as the character Lieutenant Jim Dangle from the Reno 911 show. The unnamed woman's costume was not described, but she reported that that Edelman "reached under [it] and grabbed her crotch."

The Boston Police arrested Edelman and charged him with "indecent assault and battery." He was arraigned in the Boston Municipal Court and released without the imposition of bail. The Globe reported that he was scheduled to return on January 10, 2012. The case, however, must have been rescheduled for Thursday this week. The prosecution then announced that after a thorough investigation, they would not be able to meet their burden of proof beyond a reasonable doubt.

According to the Globe, the official statement was: "To constitute indecent assault and battery, physical contact must be intentional; potentially physically harmful or an affront to the victim's integrity; fundamentally offensive to contemporary moral values; and without justification of excuse. Prosecutors could not prove these elements with evidence contained in the surveillance imagery, witness statements, and other evidence." The DA's press secretary added that the decision to drop the charges was based on the "provability of the case," and had "absolutely nothing to do" with the identity of the parties.

This is obviously good news for Edelman and the Patriots who will be facing the Broncos in Denver tomorrow afternoon. Fans hope that Edelman has a clear head as he will be needed in his fairly new role in the struggling (32d in the league) defensive backfield. Especially with "Tebow Time" looming. The resolution of the court case is, however, somewhat puzzling. It leaves one to think that there must be more to the story. If a woman says that a man grabbed her crotch without her consent, witnesses and video recordings are not necessary. That statement covers all the elements of the crime. She just needs to take the stand and tell the jury that is what happened. If they believe her it's a conviction, if not, it's an acquittal. She is most certainly the missing link in the prosecution's case. Without her, they didn't have one.

Next up, Mike Milbury, a far more prominent local sports figure. He played 12 seasons for the Bruins, followed by serving as the team's assistant general manager and then head coach. He is currently a sports media analyst, and as we learned from recent news, an assistant coach and director of coaching with his son's Pee Wee hockey team - the Boch Blazers.

The Boston Globe reports that on December 9, the Blazers played the Boston Junior Blackhawks at Jack Kirrane Ice Skating Rink in Brookline. There were reports that a 12-year old boy had been "antagonizing" Milbury's son, Jake, during the game. Milbury complained to the Blackhawk's coach without redress. After the game, the kids had pizza on the ice and then lined up for a shoot-out at center ice. At this point, the alleged victim threw Jake to the ice and a scrum ensued. The victim's mother said that Mike Milbury intervened, picked her son up by the shirt, shook him, and yelled at him. Surely, there were several other witnesses.

The Brookline Police investigated and decided to bring charges against Milbury including assault and battery, threatening to commit a crime, and disorderly conduct. It is unclear if Brookline Police Captain Thomas Keaveny was part of the investigation, but he told the Globe that he has four children of his own who have played sports, and "it doesn't surprise him to receive reports a former professional hockey player getting involved in an alleged assault ." He also said: "I've seen a lot of irresponsible things done by adults and Mike Milbury is no different in my mind." He then attempted to walk this back by saying that these are "just allegations," but a bell, as we say, cannot be un-rung.

Luckily for Milbury, the charges were all misdemeanors and none of the alleged crimes were witnessed by the police. (Captain Keaveny apparently came to his conclusions without the benefit of first-hand knowledge). As such, Milbury was not arrested, and he is entitled to a hearing before the Clerk Magistrate of the Brookline District Court to determine whether a criminal complaint will issue against him. As I have said in the past, this is an excellent opportunity to get folks together and hash out their differences without the necessity of drawn-out criminal court intervention.

Whether that is possible here is somewhat problematic. On one hand is Milbury who watched his own son being antagonized and then thrown to the ice. Milbury has people on his side that describe him as a great guy, as a fantastic coach who is well loved by the kids, and as being a proponent of peace on the Pee Wee ice. On the other is a police captain who has exhibited a bias against former professional athletes in general and against Milbury in particular, as well as an understandably upset mother who witnessed her own son being manhandled by an adult. This one will be a challenge for the magistrate, especially with the pressure of media coverage.

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Boston Municipal Court to Hear Assault Charges Against Occupy Boston Protester

November 25, 2011

Occupy boston tent city.jpgThe Boston Police arrested Jade Anderson at the "Occupy Boston" site on Saturday, November 19. According to the BostonChannel.com, a witness called 911 to report that a man was assaulting a woman at the demonstration, and when the police arrived, Ms. Anderson assaulted them.

The Suffolk County District Attorney's Office and the Boston Police reported the following: While to police were investigating the 911 call, Ms. Anderson ran at them chanting anti-police slogans and sprayed them "with spittle as she did so." She pushed one officer and when he told her to leave the area, she punched him in the face. A second officer intervened and received the same from Anderson. All three went to the ground as the police tried to arrest her.

The police charged her with one count of being a Disorderly Person and two counts of Assault and Battery on a Police Officer. Apparently Ms. Anderson bailed out of the police station and was ordered to appear for arraignment in the Boston Municipal Court on Tuesday, November 22. She however, did not show up, and the Boston Municipal Court entered her default and issued a warrant for her arrest.

She was not hard for the Boston Police to find. The next day, they spotted her at the same site with a conspicuous new hair color - purple. During their attempt to arrest her on the warrant, she allegedly kicked one of them in the leg. Boston .com reports that when asked why she did it, she said, "Because you [expletive] deserved it." She would later apologize and explain that she "had to do what she had to do to fight the corruption."

The police transported her to the Boston Municipal Court for arraignment. The court Bail set bail at $850 and ordered her to stay away from all Occupy Boston activities in the city. There may be more to this than has been reported, or she may have just let her passion to fight the corruption get the better of her. An experienced criminal defense attorney, will surely assist her in presenting her defense.

It would appear that Ms. Anderson must now defend herself against charges from two different cases. The original charges of Disorderly Conduct and Assault and Battery on a Police Officer were all misdemeanors. Kicking the police officer, however, may have resulted in a felony charge of Assault and Battery with a Dangerous Weapon (foot with shoe on it). She is 20 years old and will obviously be advised to avoid a conviction of any charge. A criminal record may have long lasting negative consequences, especially a record of a felony conviction.

In the event that this young woman has no prior record, she will likely be able to resolve the cases without incurring a criminal record. She may do this if she is willing to admit that the police have enough evidence, and ask the court not to convict her but to continue the case for a period of time and then dismiss it. If however, she has a legitimate defense, or her passion to fight the power compels her to take a stand, she may request trials.


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Shoplifters at iParty to be Charged in West Roxbury Court

gorilla1.jpgThe West Roxbury Division of the Boston Municipal Court will hear criminal charges of shoplifting and larceny against two men involved with the theft of gorilla suits from iParty on Monday. According to the article in the Boston Herald, there were actually four men together in the store. Employees of iParty apparently noticed three of them leave with one carrying the goods -- two gorilla suits valued at one hundred dollars each. The Boston Police reportedly said that the other two "booked it down VFW Parkway." The one man that stayed behind said he did nothing wrong and he actually called the man in possession of the stolen get-ups and convinced him to bring them back. According to the Herald, that man, 18 year-old Brian Cherry, "was charged with larceny/shoplifting of $200 and over." It is not clear if they were both charged; the article said that they were all involved.

Looking back, if the man that remained in the store did not help out, and the man with the gorilla suits did not return, the police would have just one suspect who asserted his innocence and the store would be out two costumes. Of course, there may be evidence, not reported, that could prove that the man that stayed behind "aided or abetted" Mr. Cherry in the theft. Perhaps they both planned to go out on Halloween as apes.

In any event, this misadventure has some interesting issues. As mentioned, "aiding or abetting" could be applied to convict the man that stayed behind. Since he did not carry off the merchandise, the only way he may be guilty is if he "aided and abetted" Mr. Cherry.

In order to prove this, the government needs proof that he participated in some way, and shared Cherry's intent to steal. His participation may be shown by assisting, encouraging, planning, standing by as a lookout, agreeing to help, or agreeing to help with the escape. If this is provable, then the man left behind could be found guilty of shoplifting even though he never left the store with the merchandise.

It is important to note that merely being present is not enough to prove him guilty, even if he knew it was about to happen and did nothing to stop it. In other words, under our laws, there is no such thing as guilt by association. To be convicted, there must be proof beyond a reasonable doubt that he actually "participated" in the crime and shared Cherry's intent.

There are other legal issues involving the charges. The article says that the charges are "larceny/shoplifting of $200 and over." Actually the charge must be either shoplifting or larceny an the government may bring either charge. If it is shoplifting it will be "shoplifting over $100," because The Massachusetts Shoplifting statute provides for enhanced penalties when the value of the merchandise is over $100. At that stage, the penalty increases to a possible jail sentence of 2 1/2 years and a fine of $1,000.

If the charge is is larceny it will be "larceny under $250," because the Massachusetts Larceny statute provides for penalty enhancements at a cut off point of $250. If, as it is in this case, the value of property involved in a larceny prosecution is less than $250, the penalty is a maximum of 1 year in jail and a fine of $300. Hence in this particular incident, the shoplifting charge is actually more serious than the larceny charge.

An experienced criminal defense attorney will know this. Hopefully for Mr. Cherry and his friend this analysis will not be necessary. If they have no prior criminal involvement, an experienced criminal defense attorney should be able to have the charges dismissed, or avoid the prosecution altogether with a disposition at a clerks hearing.

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Hingham District Court Arraignment for Quincy Man Charged AFTER Swimming During Hurricane

September 1, 2011

Waves1.jpgThe Massachusetts State Police arrested Daniel Jacques of Quincy on Sunday for swimming at Nantasket Beach during hurricane Irene. According to the Patriot Ledger, storm watchers on the beach flagged down the troopers to tell them that Jacques was swimming in the "churning" water.

The troopers apparently got Mr. Jacques' attention and he came towards shore. When he got close, however, he took off running. The troopers gave chase and later claimed that he almost caused several car crashes as he ran. After they caught him, the troopers charged him with being a disorderly person in violation of Massachusetts General Laws chapter 272, section 53.

This story raises some interesting questions and illustrates some basic principles of criminal law. The first question is what did Jacques do to deserve being arrested? A cursory read of the article's headline may lead one to believe that Jacques was arrested for hurricane swimming. Although the the rest of the article does not address it specifically, it is fairly clear that the real reason for his arrest was his running though traffic.

Patriot Ledger commenter Right Auntie said: "Disorderly conduct is a charge when they can't find one to charge someone with." This may sometimes appear to be the case, but to be charged with disorderly conduct or any other crime, there must be evidence of specific criminal elements defined by the written statute.

These are the statutorily defined elements of disorderly conduct:

1. Engaging in fighting/threatening or engaging in violent/tumultuous behavior or creating a hazardous or physically offensive condition by an act the served no legitimate purpose;
2. engaging in actions that were likely to affect the public; and
3. engaging in this behavior while intending to cause a public inconvenience or recklessly creating a risk of public inconvenience, annoyance or alarm.

It would be somewhat of a stretch to say that hurricane swimming fits the definition. Running through traffic is closer. The prosecution may argue that Jacques created a hazardous condition which likely affected the public and recklessly created a risk of public inconvenience as he ran in front of moving cars.

In the unlikely event of a trial on this matter, the issue of fact that will most likely be contested is whether Jacques actually caused near accidents. Jacques may argue that he did nothing criminal by swimming and the troopers knew it, but chased him just because he ran. After all, if he were not committing a crime by swimming, and was not going to be arrested for it, why were the police chasing him through traffic or anywhere else?

Hopefully, Jacques will retain counsel able to end the matter without a conviction for any crime.

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Wrentham District Court Arraigns Foxboro Man Involved in Alleged OUI Crash Causing Serious Injuries

cuffs.jpgFoxboro Police responded to a single car crash on Elm Street early Sunday morning to find that Shane McCarthy had been thrown from the wreck and seriously injured. He was taken to Providence Hospital and induced into a coma. The driver, 20 year-old Edward Ryan, suffered only minor injuries, but was taken to Norwood Hospital in the custody of the Foxboro Police.

According to an article in the Sun Chronicle, Ryan took and failed a portable breath test and the Foxboro Police arrested him on the scene. The breath test reading was 0.192. (For drivers under the age of 21 a reading of .02 or above is considered a failure). The following day, Ryan was arraigned in the Wrentham District Court on charges of Operating Under the Influence of Alcohol, Operating Under the Influence and Causing Serious Bodily Injury, and Negligent Operation.

Mr. Ryan is in particular need of an experienced criminal defense attorney. Besides having a car accident that seriously injured a friend, he must now combat some weighty criminal charges. The fact that he had a car accident at 4:00 a.m., and had consumed alcohol even though he was under the legal drinking age are serious obstacles to overcome.

An accident has varied implications in drunk driving cases. One may tend to believe that it is indicative of alcohol impairment. On the other hand, one's performance on field sobriety tests after such a trauma will be significantly skewed. The article does not mention any such tests. As for the portable breath test, the results may provide probable cause to arrest, but they are not admissible in court at trial. Since the article does not refer to an admissible breath test, it does not appear that the prosecution will have admissible evidence of blood alcohol levels unless blood was drawn at the hospital. It is likely that other facts exist that may be utilized in favor of the defense.

The most formidable charge Ryan faces is "Serious Bodily Injury by Motor Vehicle While Under the Influence of Intoxicating Substances." This crime is set forth in Chapter 90 section 24L of the Massachusetts General Laws. This section makes a distinction between OUI/Serious Injury and OUI/Serious while operating recklessly. It appears that the Foxboro Police charged Mr. Ryan with the latter more serious charge. This charge is a felony and carries a potential state prison sentence of not less than 2 1/2 years and not more than 10 years. There is a county jail alternative of not less than 6 months and not more than 2 1/2 years. This is a mandatory minimum 6 months of incarceration. In such circumstances it is possible to negotiate an amendment to the lesser charge which does not carry a mandatory sentence. After all, an accident in and of itself is not proof of recklessness and there does not appear to be any independent evidence of such driving.

Although it is not likely to be foremost on Mr. Ryan's mind at this stage, the potential loss of license is substantial. This is due to the charges and his age. Underage drivers are subject to enhanced penalties in OUI cases. If the lack of a breath test result is because he refused it, the loss of license is 3 years. A conviction on the OUI/Serious Injury charge will result in an additional 2 years loss of license.

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Foxboro Police Traffic Stop Yields Load of Illegal Fireworks

Fireworks.jpgA Foxboro Police Sergeant on patrol Thursday saw a pickup truck traveling through town with a fairly large load of fireworks in the bed. The sergeant pulled the vehicle over and seized the evidence -- an estimated $5,000 worth of fireworks. Apparently, the driver told him that he was coming from New Hampshire where such fireworks are legal.

The article in the Foxboro Reporter does not describe the charge that the Foxboro Police will seek, but it is likely that it will be more than just illegal possession of fireworks The amount involved here will likely result in an application for complaint for "keeping fireworks for sale."

The law that makes fireworks illegal in this state is Massachusetts General Laws chapter 148, section 39. Under this law, possession of fireworks is punishable by a fine of not less than ten dollars ($10) and not more than one hundred dollars ($100). But, if you "sell or keep for sale . . . any fireworks" you may be punished by a fine of not less that one hundred dollars ($100) and not more than ($1,000), or imprisonment for not more than one year, or both. This punishment range makes these charges misdemeanors.

Five thousand dollars worth of fireworks is an amount likely to raise an inference that the man driving the truck intended to sell them in the same way that the volume of drugs in one's possession may be indicative of an intent to distribute. Section 39 allows for the arrest of someone suspected of a violation, but, luckily for the pickup truck driver, the sergeant decided not to take him into custody. Instead, the police will file an application for complaint and he will be sent a summons to appear in the Wrentham District Court. Most likely he will appear for a show cause hearing before a clerk magistrate.

At the hearing the man will have a chance to prevent the complaint from issuing. If successful, he will not be required to appear for arraignment (and perhaps many other court dates) in front of the judge of the Wrentham District Court. This is a golden opportunity, especially where there are limited defenses available.

Whenever a case involves a crime that requires proof of possessing something illegal, the first question that comes to the mind of a criminal defense attorney is whether or not there is a viable Motion to Suppress. In this case, the sergeant apparently saw the fireworks in the back of the truck. If this is true, and the driver left them out in plain view, then he cannot argue that the police violated his rights to be free from unreasonable searches when he simply looked over and saw the boxes in the back. The picture in the article shows a stack of boxes that may have reached higher than the side of the pickup's bed, depending on the size of the truck/bed.

Unlike drug cases where one need not sell but merely distribute drugs to be charged with the enhanced penalty aspects of the drug laws, the fireworks statute's enhanced penalties apply solely to the sale of fireworks. Hence, if the man were just bringing them to a party (large party) for use by guests (lots of guests), there would be no sale and therefore no punishment beyond the lesser fines.

A bill calling for limited legalization of fireworks has been pending in the Massachusetts Legislature since at least January of this year. The bill, H.3372, would allow cities and towns to grant permits to possess and licenses to sell fireworks. The bill removes the possibility of jail as a punishment, but increases the minimum fine to $500 for a first offense and $1,000 for each subsequent offense. (Query: If you get a permit and some fireworks for your cookout, may anyone else at the party set them off?)

In any event, the man stopped in Foxboro will not likely be seeing the inside of a jail cell as a result of the incident. He has already lost some valuable merchandise (and partially defused his Independence Day celebration) by not investing in a tarp and some rope. He should limit further losses by contacting experienced local counsel prior to responding to the summons that he will be receiving in the mail. Doing so could save him not only the fines, but many trips to court.


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Westwood Police Charge Texting Driver in One-Car Crash

car into pole.jpgA vehicle struck a telephone pole on High Rock Street in Westwood late on Saturday last week. The Westwood Police responded to the scene, and according to the Patch article, "it was discovered that the driver of the car had been texting when the accident occurred." The driver will face charges of "reckless operation" and "unsafe operation" in the Dedham District Court.

This short story contains some lessons. First, texting while driving is dangerous. Second, if you make the mistake of doing it anyway, and you crash your car, it would be best not to tell the police about it. Telling the truth is good; self-incrimination is not. After all, you can't change what has already happened, but you can limit your damages.

Charges stemming from one-car accidents generally stem from witness statements. Sometimes there will be other drivers or even pedestrians that report bad driving. However, since this case involves texting, the statements must have come from someone in the vehicle. Hence, my conclusion that the driver told the police about texting while driving. An experienced criminal defense attorney,however, may find a way to keep these statements out of evidence, thus strengthening the defense position enormously. Without this information, it's just a car accident, and the fact that an accident has occurred is not evidence of criminal recklessness.

Although the article states that the driver was charged with "reckless" and "unsafe" operation, there is no statute regarding "unsafe" operation. I would guess that the charges were for violating Chapter 90, Section 24 Paragraph 2(a). This statute covers operating recklessly and operating negligently so as to endanger the public. Negligent operation is essentially failing to act reasonably while driving. Reckless operation goes beyond negligence and includes knowing that your driving behavior poses a grave risk to others and deciding to run that risk anyway.The penalty for each is the same: a fine of not less than $20 and not more than $200; jail for not less than 2 weeks, and not more than two years, or both a fine and jail. There is also a $250 "Head Injury" fee and a possible 60 day loss of license.

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Dedham Birthday Party Ends in Fights and Arrests

cuffs black man.jpgDedham, Boston, Westwood, Needham, and Massachusetts State Police were invited by radio to James Brown's birthday party at the Dedham VFW post over the weekend. According to the Dedham Transcript, sometime after midnight the party moved from the hall to the parking lot and somewhere along the way the mood changed from revelry to rampage. Upon their arrival, the Dedham Police found "widespread intoxication," a quarrelsome crowd of 50 to 75 people, and "fights starting here and there." Because of the situation and the sheer number of people involved, the Dedham Police called in reinforcements from out of town and assembled a force of some 30 police officers. These officers were able to restore order after 30 to 40 minutes.

What could have been a lot worse for a lot of people resulted in three arrests. Atarrah Small was fighting and therefore arrested for assault and battery. Levar Fernandes was charged with resisting arrest and disorderly conduct. And sadly, James Brown, the birthday boy himself, merited the most serious charges - assault and battery on a police officer (technically "assault and battery on a public employee") and disorderly conduct. All charges will be litigated in the Dedham District Court.

The article did not contain any reference to the person that Ms. Small was fighting with or explanation as to the lack of charges against that person. If the police did not see Ms. Small strike the other person, then live testimony from the other person will be necessary to prove the case against her. Even if the police witnessed the woman fighting, a question may still exist as to who started the fight. If she were not the initial aggressor, and was merely defending herself, the charges may not hold. This is similar to the common football scenario where the referee does not see the initial foul but does see the unsportsmanlike reaction to it.

Since there must be a valid arrest in order to be charged with resisting arrest, one must assume that Mr. Fernandes had been disorderly first and then put up a struggle when the police attempted to arrest him on that charge. Disorderly conduct is not an uncommon charge in such circumstances, and once one person gets publicly arrested, the rest of the crowd tends to get the message. Most would agree that they know disorderly conduct when they see it, but for it to be a crime certain elements must be proven. The charge requires proof that that one's actions (tumultuousness, fighting, threats, violence, etc.) were such that they would likely affect the public, and that they were undertaken with the intent to alarm to the public or with reckless disregard as to whether they would or not. If any element is missing, the charge cannot be sustained.

Lastly, James Brown was taken into custody for assault and battery on a police officer and disorderly conduct. The article does not give any specifics, but I would suspect that the police felt that Mr. Brown was not acquiescing to their commands to disperse in a timely fashion, and perhaps voiced his displeasure with their appearance at his party. Most likely, the alleged assaultive behavior took place during Mr. Brown's birthday arrest. Surely, with 50 to 75 guests, he was able to find resources to bail out of the Dedham Police station in short order, and will retain experienced local counsel.

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Plainville Partiers Rounded Up For Wrentham Court

The Plainville Police, with assistance from the Foxboro and North Attleboro Police Departments, arrested 52 people at a party in Plainville on Friday night. The Plainville Police called in the re-enforcements from other towns because of the large number of people being arrested. According to the Boston Herald, the police received parking and "party complaints" about the Melcher Street address and when they arrived, they heard loud music, saw cars blocking a hydrant, and smelled burning marijuana. Inside, the police found a "beer stocked refrigerator" a jar "full of marijuana", beer pong tables, and two bongs. A picture from the Sun Chronicle displays the items seized. Further investigation revealed that 46 of the 52 soon-to-be-arrested people had not reached the legal drinking age. As for charges, the Sun Chronicle reported that "[t]hose under 21 were charged with being minors in possession of alcohol. Those 21 and older were charged with furnishing alcohol to minors." Apparently, no one was charged in connection with the marijuana. Perhaps because the police could not determine ownership, or perhaps because possession of small amounts has been decriminalized.

Whether neighbors complain or not, it is obvious that the police cannot let underage drinking parties go unchecked. Confronted with such gatherings, the police have a difficult task of sorting out the law-breakers from the innocent. The news stories, however, give the impression that not a lot of sorting went on, and that everyone at the home was arrested, except of course, for 21 year-old Edward Piotrowski who made his escape out the back door.

Just being in the room with alcohol, or any other item does not amount to "possession." Moreover, being over 21 in a room with beer and underage people does not make you guilty of buying it for them. Miss Alexandra Ceven makes my point when she is quoted in the Boston Herald saying, "We all just got together to take some pictures, have some memories. I would say half of the people who were there that night had not been drinking at all."

So it will be up the Wrentham Court to do the sorting. The priority of each person will be protecting his or her record. This is particularly important for young people and their futures. While many may have cases which could be won at a trial, a more reasoned approach could result in an even better outcome. A dismissal prior to arraignment upon court costs or community service would eliminate the risk of conviction, and keep the information from entering on their records at all.

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