Boston Criminal Defense Lawyer Blog

Roslindale Massachusetts Man Arrested And Charged With Violation Of A 209A Restraining Order Despite Fact Alleged Victim Contacted Him

Tue, 14 May 2013 11:07:35 -0500

Maksim Zylyftari, a Roslindale man, was arrested April 29, 2013 for a 209A restraining order violation after the alleged victim invited him to her residence. The order issued from the West Roxbury District Court on April 22, 2013. Police allegedly went to the defendant’s address to confirm that the defendant had been served with the restraining order. When they arrived, the alleged victim, the defendant’s wife, told the officers that the defendant was in the home playing with their daughter. The defendant allegedly admitted to being served with the order but said that his wife called him over to the residence to “try to work things out.” The officers arrested the defendant and advised the victim that she should not contact her husband because of the active order.

This story illustrates a misunderstanding that parties to Massachusetts 209A restraining orders and 258E Harassment Prevention Orders commonly encounter. When there is an active restraining order in effect, contact with the plaintiff is a criminal offense, even if the plaintiff welcomes the contact. After the order issues and while it is active, it is not up to the plaintiff to decide, without court involvement, that he or she no longer wants the order to be effective. Often times, persons get restraining orders on a whim and, shortly thereafter, decide that they want to work things out with their partner. Restraining order defendants should be careful to remember that it is the court’s order, not the plaintiff’s order. If a plaintiff changes his or her mind and no longer wants the restraining order to be effective, then he or she should go to the court and ask that it be vacated. Here, an experienced criminal defense lawyer might be able to convince the prosecution not to go forward with this case, as it is apparent that the alleged victim does not desire it. However, particularly when it comes to cases involving domestic violence, prosecutors can be reluctant to do so.

It is an unfortunate reality that Massachusetts 209A abuse prevention orders are often used by vindictive ex-spouses or partners to bully restraining order defendants. Massachusetts courts tend to issue these orders freely and based on very little proof. Victimized restraining order defendants are then restricted in their daily lives and may even be excluded from involvement in the lives of their children. Restraining orders might have the effects of evicting a defendant from a shared residence, forcing a defendant to forfeit firearms, or temporarily causing a defendant to lose custody of minor children. It is critical to retain an experienced Massachusetts attorney to fight issuance of a 209A abuse prevention order.

Former Animal Control Officer Charged With Animal Cruelty In Wareham District Court

Mon, 06 May 2013 16:20:00 -0500

Anna Nelson, a 51-year-old former animal control officer, was charged Monday April 29 with animal cruelty in Wareham District Court. The government alleges that Nelson withheld veterinary care for her sick dog. The defendant allegedly told an MSPCA investigator that she was “too proud” to seek care for the dog.

A neighbor allegedly reported the dog’s poor condition to an animal control officer in December. The neighbor allegedly told the officer that the dog, a terrier mix, was emaciated and could barely stand without collapsing. The officer took the dog to a veterinarian, who concluded that the dog’s condition was likely caused by negligence and an underlying disease process. The dog was ultimately put to sleep. The government claims that Nelson admitted to being the dog’s owner and told investigators that she could not afford veterinary treatment. She allegedly said that she did not seek help because her “pride got in the way.” Nelson was arrested on April 27, and her pre-trial date is presently scheduled for June 13.

Massachusetts General Laws chapter 272, section 77 governs the crime of cruelty to animals. In addition to prohibiting cruelly beating, mutilating, and killing animals, the statute prohibits unnecessarily failing to provide an animal “with proper food, drink, shelter, sanitary environment, or protection from the weather…”

As a Massachusetts criminal defense attorney, it seems that this defendant might argue that the statute imposes no obligation to seek veterinary care when an animal is experiencing a natural decline in health. Veterinary care is not included in this statutory list. “Cruelty” in the context of this law means severe pain inflicted without justifiable cause. Here, the defendant might argue that while the dog may have experienced pain, the cause was not attributable to the owner but, rather, to the natural disease process. For instance, the dog’s emaciated state could be the result of disease, as the veterinarian noted, as opposed to the owner’s failure to provide the dog with food or drink. The owner might also argue that failure to seek veterinary care was justifiable, as she could not afford it. In one case, the Appeals Court declined to answer the question of whether necessary sustenance includes medical care because, in that case, there was ample evidence of deprivation of food.

If convicted of animal cruelty, pursuant to the statute this former animal control officer will not be able to work in any capacity that involves contact with an animal, including an animal control facility as well as a shelter, pet shop, breeder service, veterinary hospital or animal welfare society. The crime carries a potential penalty of up to 2 ½ years in the house of correction or up to five years in the state prison.

Boston Man Faces Charges Of Breaking And Entering In Framingham District Court

Fri, 26 Apr 2013 18:00:26 -0500

Paul Lentini, a 30-year-old Boston man, was arrested in Framingham on April 24 after an alleged breaking and entering. Police claim that Lentini forced his way into a back door of a home and later jumped out of a second-floor window to escape. The defendant allegedly knocked on the front door before entering the home through the back. A 16-year-old girl was inside and called the police and her mother. The defendant was allegedly trying to take jewelry from a second-floor bedroom when police and the girl’s mother’s boyfriend arrived on the scene. He allegedly jumped out of the bedroom window into bushes, at which point the mother’s boyfriend tackled him.

Lentini was arraigned Thursday April 25 in Framingham District Court. He is charged with breaking and entering during the daytime, receiving stolen property under $250 and possession of burglarious instruments. His next court date is May 24. Breaking and entering in the daytime is a statutory modification to the common law of burglary. Before the statutory modifications, an element was that the breaking and entering of a dwelling house take place in the nighttime. Even under the current expanded law, an entering in the daytime without a breaking is only a trespass. However, opening an unlocked door or window still counts as a “breaking.” Other statutory modifications expanded the common law of burglary to punish: breaking and entering into any building or vehicle at night to commit a felony; breaking and entering into any building or vehicle at any time to commit a misdemeanor; entering without breaking any building at night with the intent to commit a felony.
Here, it is unclear how anyone came to know that the defendant was trying to take jewelry from the bedroom. A breaking and entering conviction requires proof that a defendant had the intent to commit a felony. While movement of jewelry may be suggestive of an intent to steal, there is no indication in these news reports that anyone saw the defendant moving jewelry or that the defendant was found in possession of jewelry or any other item that could be the target of theft. When a breaking and entering takes place in the nighttime, the intent to steal may be presumed. That is not so in cases involving breaking and entering in the day. The basis for charging this defendant with receiving stolen property and possession of burglarious tools is also unclear from these facts. Sometimes, the government claims that innocent items are “burglarious instruments.” Where a tool has an innocent purpose, it can be difficult for the government to prove burglarious intent or knowledge that the tool was designed for a burglarious purpose.

Waltham Police Officer Faces Federal Child Pornography Charges

Thu, 18 Apr 2013 18:48:59 -0500

A Waltham police officer was arrested by FBI agents March 26 and faces federal child pornography charges. Federal prosecutors claim that the officer sent and received child pornography by way of a Yahoo! e-mail account. The officer told agents that he was conducting research to “identify perverts,” but the police department said that the officer was never assigned to such an investigation. Agents executed a warrant to search the officer’s home on March 25, at which point the officer allegedly admitted to sending and receiving the images. He faces a 5-year mandatory minimum and up to 20 years in prison.

An investigation in Australia allegedly led authorities to the officer. In February 2012, an Australian man was arrested on child pornography charges, and police obtained his e-mail records. The records indicated that 111 United States e-mail accounts had been in communication with the Australian suspect. FBI agents focused on two of the e-mail accounts, one allegedly used by the Waltham officer. Prosecutors allege that in one e-mail, the officer indicated that he touched a girl in inappropriate areas while “wrestling” her. In another e-mail, the officer allegedly wrote “Thank you! Thank you!” after receiving 25 pornographic images of children. The officer allegedly wrote “I admit it. I’m addicted,” after receiving additional images. In 2012, the officer allegedly wrote “I love the girls ages 7 to 11 or so...Just beautiful! I have no real legitamite [sic] collection organized. Only the few pics that other people have sent me. I am trying to build a library so I will have stuff when people ask.” In 2013, the officer allegedly sent four videos, described as “inappropriate” by local news, to two different e-mail addresses.
Here, there is no indication that the agents had a warrant to search the officer’s e-mails, and the e-mail search likely provided the basis for the warrant to search the home. Under federal law, the government needs a warrant before it can access e-mails if they have been in “electronic storage” for 180 days or less. If an e-mail is not in “electronic storage” or if an e-mail has been in storage for more than 180 days, the government only needs a subpoena. Whether this law is constitutional has been the subject of debate in the federal circuits for years, though the Supreme Court has yet to rule on it. This defendant might argue that the government accessed his e-mails in violation of the federal statute and/or the Fourth Amendment and that therefore, the warrant to search his home was invalid because observations resulting from an illegal search cannot support the issuance of a warrant.

Defendant Faces Charges Including Identify Theft, Criminal Harassment and Dissemination Of Obscene Material To A Minor In Woburn District Court

Fri, 15 Mar 2013 07:53:33 -0500

A Carlisle man has been arraigned in both Woburn and Concord District Courts on charges of dissemination of matter harmful to a minor. He is also charged with six counts of dissemination of obscene material, identity theft, and criminal harassment. His pre-trial conference date in Woburn District Court is scheduled for March 1. His Concord District Court pre-trial date is scheduled for March 26.

The prosecution alleges that a California resident contacted Concord police this fall claiming that a person had posted photographs from her Facebook page onto a pornographic website without her permission. During the course of the investigation, police allegedly discovered that the defendant had multiple fake Facebook accounts. He allegedly used the accounts to initiate online contact and send the contacts unsolicited sexual images. Some of the images showed printed photos of the recipients covered in what looked like a bodily fluid. One alleged victim was 14 years old, and the defendant allegedly engaged in sexual conversations with children. The Concord, Carlisle, and Wilmington police departments are continuing the investigation along with state police assigned to the Middlesex District Attorney’s office.

It is unclear what led police to the defendant, but computers and the anonymity of the Internet sometimes complicate these types of cases in ways that might be favorable for defendants. For instance, there can be multiple people, sometimes in separate households, using the same IP address or Internet connection. Because of this, it can be difficult for police and prosecutors to identify which particular user is responsible for Internet communications.

Here in Massachusetts, a conviction of dissemination of matter harmful to a minor, if it involves an electronic communication, requires proof that the defendant specifically intended to direct the communication to a person he knew or believed to be a minor. Here, the defendant apparently did not know the 14- year- old, and it may be difficult for the government to prove that he believed the 14-year-old to be a minor. It is also unclear from this article whether the allegation is that the defendant sent photos to the minor or whether he had sexual conversations with the minor. The word “matter,” for the purposes of dissemination of matter harmful to a minor, does not include online conversations, online messages, or electronically transmitted text. Even if, as is alleged, the defendant did print images from the complainants’ Facebook accounts and send back images of the photos covered in what appeared to be bodily fluid, a strong position for the defendant is that this conduct falls short of “obscenity” in the legal sense. Contemporary standards are applied in determining whether an item is obscene, and there has to be some patently offensive depiction or description of sexual conduct. While “sexual conduct” includes masturbation, there is no indication in this case that the act masturbation was depicted, even though the photos allegedly showed bodily fluid. In this case, based on the description of the “sexual images,” it does not seem that any sexual conduct was depicted in the images.

North Andover Man Charged With Possession Of Marijuana With Intent To Distribute

Wed, 06 Mar 2013 21:01:35 -0500

Erik Lang, 20, was arrested for possession with intent to distribute marijuana on February 27th after a traffic stop in North Andover. Police allegedly stopped Lang after learning that his license was suspended. Further investigation revealed that Lang had there-quarters of a pound of marijuana with him. Police told the local newspaper that the amount indicates that Lang had the marijuana for “more than personal use.” Lang has been charged with driving after license suspension, possession with intent to distribute marijuana, and possession of marijuana.

Contrary to what the police officer suggested to the newspaper, quantity of drugs is far from dispositive on intent to distribute. There are a number of indicia considered in assessing whether there was an intent to distribute drugs. Factors considered include: the packaging of the drugs; presence of paraphernalia associated with distributing drugs, such as scales, plastic baggies and cutting agents; presence of large amounts of cash; and multiple cell phones. Lack of intent to distribute is a common, and often viable, defense in these types of cases.

As a Massachusetts drug crimes defense lawyer, I’m interested in the nature and extent of the “investigation” that followed the stop. There have been important legal search and seizure developments in the context of marijuana-related searches ever since possession of one ounce or less of marijuana became a civil, as opposed to criminal, offense in Massachusetts. Depending on the facts and circumstances of the encounter, Lang might have solid grounds for a motion to suppress evidence.

I’d also be interested in whether there were other occupants of the car, whether this defendant owned the car, and the location of the alleged marijuana. These factors are important in considering a lack of possession defense. For example, if the car did not belong to this defendant and the alleged drugs were in the trunk or under a seat, he might be able to argue that he did not know that the drugs were in the car and that he did not have control over the drugs.

Some tend to forget that possession of more than an ounce of marijuana is still a criminal offense in our Commonwealth. Here, it seems inappropriate that the defendant is charged with both possession and possession with intent. When the Commonwealth charges two drug violations , the specific controlled substance supporting each charge must be a “separate item” or “separate unit of prosecution.” In this example it appears that both the possession and possession with intent charges are based on the same item.

Four Teenagers Facing Charges In Haverhill District Court For Malicious Destruction Of Property And Disorderly Conduct

Wed, 13 Feb 2013 09:22:49 -0500

Four Groveland teenagers have been arraigned in Haverhill District Court on charges of malicious destruction of property and disorderly conduct after allegedly confessing to smashing 19 mailboxes and two car windows with a baseball bat. The teens -- Benjamin Tocci, 19; Brandon Yemmi, 17; Tyler Kelly, 17; and Cody Hillner, 17 – were allegedly playing a game of “mailbox baseball” after a 1:30 a.m. drive to buy cigarettes at a convenience store. Police allege that the property destruction was not confined to any particular area or neighborhood and believe that there were more unreported instances of vandalism. The prosecution will seek restitution, local news reported.

Police allegedly connected the teens to the vandalized mailboxes after writing down the license plates of “several” cars that they passed on road. This case is an example of why it is important to contact an attorney as soon as possible. Had the teens consulted with a lawyer and not admitted to the acts, then there may have been no probable cause to charge them with these crimes. There is no indication that anyone saw the teens smashing the mailboxes or provided any description of suspects. There is no indication that anyone provided a description of the vehicle. The fact that the teens’ car was among “several” cars that passed down the particular road would likely not have been sufficient to give rise to probable cause. If the suspects not spoken with the police, then there may not have been enough probable cause to charge them or, alternatively, they would have had strong grounds for a motion to dismiss the complaint for lack of probable cause.

The teens are charged with malicious destruction of property over $250 for the smashed car windows. Malicious destruction of property over $250 is a felony. A viable defense would be to establish whether there was really more than $250 worth of damage to the windows. The damage alleged is apparently limited to the windows, as opposed to the rest of the vehicles, because it does not appear that the suspects were charged with malicious destruction of a motor vehicle, a distinct and more serious crime which cannot be continued without a finding.

Anytime someone is facing the possibility of facing criminal charges an experienced Boston area attorney should be consulted. There are often collateral consequences that result from being charged with any type of crime including effects on job opportunities, education and sometimes even scholarship money. Minimizing the impact of these types of charges is very important. Criminal proceedings are stressful for everyone, but perhaps even more so for younger defendants who have not been in trouble before. An experienced Massachusetts Boston criminal lawyer can guide individuals through the process and achieve a result that has the least effect on educational or professional prospects at this critical time in their lives.

Proposed Changes In Massachusetts Wiretapping Statute

Sun, 03 Feb 2013 10:39:14 -0500

Legislators and law enforcement officials are pushing for a tougher Massachusetts wiretap law to crack down on gun violence, the Boston Globe reported January 28, 2013. A bill has been filed that would dramatically expand the scope of the law, which is presently limited to cases involving organized criminal activity, to cover drug and gun crimes, child pornography, money laundering and human trafficking. The law would also extend wiretap duration from 15 days to 30 days and would expand the definition of “wire communication.” Police and prosecutors claim that the law is necessary because they need more “muscle” and due to the fact that organized crime is “outdated.” Attorney General Martha Coakley referenced the Newtown tragedy in support of her position that the wiretap law needs to be changed.

There is a reason, clearly set forth in the preamble to G.L.c. 272, § 99 (the Massachusetts wiretap law) why such intrusive electronic surveillance is limited to cases involving organized crime: “[O]rganized crime carries on its activities through layers of insulation and behind a wall of secrecy… Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime.” Massachusetts courts have said that there are certain “signatures” of organized crime, such as discipline. In other words, organized crime is often sophisticated, whereas regular crime is usually not. This rationale, that normal investigative procedures do not work well in the investigation of organized crime, does not apply to cases involving “garden variety” criminal activity. This law should not be changed simply because police and prosecutors don’t want to do their jobs. The law currently provides that a warrantless interception violates G.L.c. 272, § 99 where the requisite organized crime connection is not shown. The law already encompasses a huge range of criminal activity, including possession and sale of drugs, provided that these types of crimes are connected with organized crime. Wiretapping may also violate article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment. Our courts have cautioned that wiretapping and other forms of electronic surveillance are a serious threat to privacy because this type of surveillance is “peculiarly adapted” to search of emotions and thoughts. The Supreme Judicial Court has held that electronic surveillance of conversations taking place in private homes, in the absence of evidence that the participants intended the conversations to be public, violates article 14, which provides more protection than the Fourth Amendment in some circumstances.
The current definition of “wire communication” is broad, covering any communication made by cable, wire, “or other like connection,” whether in whole or in part. The new law would, absurdly, re-define “wire communication” to include wireless communications.
Those who have been subject to a wiretapping may move to suppress on both statutory and constitutional grounds. The statutory suppression provision is G.L.c. 272, § 99P. Section 99Q also makes civil remedies available to those aggrieved by privacy violations not authorized by the statute.

Another Massachusetts Drug Laboratory Chemist Faces Criminal Drug Charges

Sun, 27 Jan 2013 20:00:16 -0500

As Massachusetts continues to grapple with the Annie Dookhan scandal, a second crime lab chemist has been arrested and will face charges relating to evidence tampering and drug possession. Sonja Farak, a 35-year-old Northampton woman who worked at the Amherst lab, allegedly substituted real drugs with counterfeit drugs to support a suspected drug habit. The lab will close temporarily.

According to Attorney General Martha Coakley, the “drugs were tested, they were tested fairly. The certificates were not impeached in any way, but we allege… that the drugs were then taken and in her possession.” Coakley claims that this case is not connected with the Dookhan scandal because the “motives are completely opposite” and because Dookhan and Farak exhibited different behaviors. Prosecutors believe that the drugs were for personal use and that there was no distribution or intent to distribute. Supervisors at the lab discovered a discrepancy in inventory and contacted state police. Farak previously worked at the Jamaica Plain lab. She will be arraigned in Eastern Hampshire district court. District Attorney David Sullivan issued a statement on Sunday indicating that his office is assessing the number of cases that may have been compromised by the chemist’s wrongdoing.

Police interviewed Farak in connection with the Dookhan scandal on September 12, 2012. Police reports indicate that Farak worked with Dookhan in Jamaica Plain before Farak started working at the Amherst lab. Farak told police that they worked on some cases together and found Dookhan to be friendly. She told police that she never noticed Dookhan doing anything improper and that she had no knowledge of anyone in the lab performing analytical procedures improperly. Farak never reported any wrongdoing in the lab during her career.
Even if, as Coakley has claimed, the Farak case is different from the Dookhan case in terms of motive, it seems to reveal that the Dookhan investigation is not being conducted as thoroughly as it should be. While police interviewed Farak about Dookhan, they apparently failed to look into Farak’s own history. It is also troubling that lab supervisors failed to notice that an employee was suffering from a heroin and cocaine addiction. One would think that supervisors in most lines of work would notice if an employee was showing up to the job while on, or while withdrawing from, heroin and cocaine. The fact that Farak’s apparent drug problem went undetected for some time is a further indication of a lack of oversight in our state’s drug labs. Now, perhaps more than ever, it is critical to speak with a Massachusetts defense attorney if you have a pending or closed drug case.

Two Lynn Massachusetts Men Charged With Larceny Stemming From A Check Scam Involving MassHealth's Transportation Program

Tue, 15 Jan 2013 06:55:00 -0500

Two Lynn Massachusetts residents, Marilyn Beltran,42, and Eliu Matos, 43, have been indicted in connection with an alleged check scam involving MassHealth’s transportation program. The two will be arraigned in Suffolk Superior Court on January 17. It is alleged that Beltran, who was employed by a private company contracted to administer the transportation program, filed fraudulent reimbursement claims between October of 2003 and July of 2012. She allegedly cashed the checks for herself, even though the claims were for family members. Matos allegedly helped Beltran by cashing some of the checks, which Beltran made out in his name. Both are facing numerous counts of larceny over $250 and presentation of false claims. According to a press release from the Attorney General’s office, Beltran was a transportation specialist, and her primary responsibility was reimbursement data entry. The alleged scheme yielded more than $490,000. An internal investigation allegedly uncovered this scheme. The company at which Beltran worked has offered to pay restitution and has promised to implement better auditing and oversight procedures.

In a statement, Attorney General Martha Coakley said, "This deception not only defrauds taxpayers, it also exploits the integrity of a system that is meant to help those most in need."MassHealth provides both emergency and non-emergency transportation services to those with low income. According to the MassHealth website, those with certain types of MassHealth coverage can be reimbursed for use of public transportation and travel costs greater than $5, provided that the medical appointment is not within walking distance and the services are documented. Van and taxi services are available to those without access to public or private transportation, so long as a health care provider authorizes the need for transportation. It is unclear how Beltran would have been able, as the government alleges, to make claims on behalf of family members. It is also unclear, from reviewing the requirements for reimbursement, how one’s health care provider would not become aware of fraud, since the medical services generally need to be documented and the provider must certify the need for transportation.

In cases such as this one, a larceny over $250 charge is punishable by imprisonment in the state prison for up to five years. At the district court level, a charge of larceny over $250 is punishable by up to two years in jail. The prosecution of Beltran and Matos will likely be very aggressive, given the large amount of money involved and the fact that, as noted by Coakley, the alleged scheme will probably undermine public confidence in the system.

Gloucester Man Charged With Animal Cruelty For Allegedly Breaking A Dog's Leg

Mon, 07 Jan 2013 12:07:10 -0500

Marc Appleton, a 30-year-old Gloucester man, has been charged with animal cruelty after allegedly breaking a dog’s leg. It is alleged that three witnesses heard the dog, which belonged to Appleton’s roommate, crying after two loud thumps. One neighbor told police that the dog was not outside until after the dog was heard crying. One witness found the dog in the bushes with a swollen leg and advised Appleton to take the dog to the animal hospital. This witness claims that Appleton admitted to “smacking” the dog after he discovered that it had chewed his DVD and urinated on the floor. Appleton allegedly told police that the dog was hit by a car. He denied hitting the dog. Appleton allegedly took the dog, a beagle mix named Buddy, to his roommate’s work place and told the roommate that the dog had been hit by a car. The two men took the dog to the hospital, and Appleton allegedly agreed to pay for the medical bills, which totaled $4,900.

Just weeks ago, John Dugan, another Gloucester man, was charged with animal cruelty after allegedly disemboweling his dog. In that case, prosecutors allege that Dugan, 26, killed the dog because it ate a large amount of heroin and then dumped its body behind a building. Police searched Dugan’s home and found a pit bull, an electronic scale, and plastic sandwich bags, items allegedly associated with drug distribution.

The cases referenced above will likely be prosecuted aggressively, and the defendants will need the help of experienced Massachusetts criminal defense lawyers. The government may take a hard-line approach because certain studies indicate that those who abuse animals are likely to become violent towards people down the line. Animal abuse is used by F.B.I. profilers as a major factor in assessing the likelihood of future violence.

Because of the reported link between abuse of animals and violence towards humans, state legislatures have been increasing animal cruelty penalties for years. Here in Massachusetts, the crime of cruelty to animals is governed by General Laws Chapter 272, section 77. It is punishable by up to 2 ½ years in the house of correction or up to 5 years in the state prison. Animal cruelty convictions also require forfeiture of the animal. The statute is drafted very broadly. The government does not have to prove that a defendant thought or knew that his actions were cruel. In addition to Chapter 272, section 7, various laws provide criminal penalties for improper treatment of specific animals, such as horses and police dogs. Chapter 272, section 80H provides that an operator of a motor vehicle that strikes, injures or kills a dog or a cat shall be punished by a fine if he or she fails to report the accident to the owner or to police. I

Demystifying 209A Restraining Orders And 258E Harassment Prevention Orders

Sun, 30 Dec 2012 10:48:17 -0500

In Massachusetts, someone can apply for a "restraining order" against another person even if the parties are not related, not roommates and have not been in a dating relationship. Massachusetts restraining order Attorney Kathleen M. McCarthy has years of experience fighting for defendants who have been served with civil 209A restraining orders or 258E Harassment Prevention Orders.

Traditionally in Massachusetts, it was necessary for the parties to either be related, living together or involved in a substantial dating relationship to have standing to apply for a civil 209 A restraining order requesting that a judge order one party to stay away or not contact another party. The standard that must be met for a judge to issue a 209A restraining order is that the complainant has a reasonable fear of imminent serious physical harm from the defendant. In Massachusetts, an individual can seek a temporary order in a district court. If the defendant is not readily available a judge often issues the order for a short period of time, one week to ten days, and sets a return date with the expectation that the responding party will be notified of the hearing. This allows a defendant to appear and court and make his or her case why the restraining order should not be extended. Typically the defendant maintains that the plaintiff is not telling the truth and/or that even if what the plaintiff is claiming is true, he or she failed to establish that these actions could reasonably cause the plaintiff to reasonably be in fear of immediate serious physical harm. Massachusetts defense lawyer Kathleen M. McCarthy meticulously prepares for these hearings. Securing the affidavit that the plaintiff filed in support of the order and reviewing all supporting documentation, such as emails, text messages and any other documents to support the clients position is crucial to be prepared to mount a successful defense. A 209A restraining order is a civil order however, any alleged violation can result in a criminal charge against a defendant for violation the restraining order. Additionally, an individual who has a restraining order issued against him or her must surrender all firearms. This fact may effect employment for individuals that are in law enforcement or other professions in which carrying a firearm is part of the job. Clearly, mounting a successful defense and preventing the issuance or continuance of a 2090A order is critical.

Massachusetts General Laws Chapter 258E provides another avenue for plaintiffs to seek a civil restraining order against a defendant. This type of order is often referred to as a "Harassment Prevention Order. The statute provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment. One major difference between this order and a 209A order is that the parties do not have to be related, married, roommates or have been involved in a substantial dating relationship.

The most common provision that the District Courts see is the first section in which the plaintiff must demonstrate, "three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property."

This first branch of harassment has five components. The first requires that there be three or more acts of harassment. The additional requirements are as follows: (1) Each act must be aimed at a specific person; (2) Each act must have been both willful and malicious; (3) Each act must have been done with intent to cause fear, intimidation, abuse or property damage; and (4) Each act must in fact have caused fear, intimidation, abuse or property damage. Defending the issuance or extension of this type of order requires an experienced Harassment Prevention Order attorney to attack each prong of the requirements. The attorney must conduct interviews with the defendant and any potential witnesses and review the appropriate documents.

Framingham Massachusetts Dentist Charged With Illegal Possession Of Child Pornography

Sun, 30 Dec 2012 10:26:31 -0500

Melvin Ehrlich, a 52-year-old pediatric dentist, was arraigned in Framingham District Court Thursday on charges of illegal possession and distribution of child pornography. It is alleged that a technician discovered the pornography on Ehrlich’s computer in March and reported it to the police. The prosecutor claimed that Ehrlich had 29 images of nude and partially-nude children on a laptop used by the dentist, his 18-year-old son, and his wife. Ehrlich allegedly took the laptop to the technician because it had a computer virus. A doctor who shares an office building with Ehrlich told reporters that her granddaughter has been treated by Ehrlich for years and that the granddaughter never exhibited any indication that something might be wrong. Ehrlich’s pre-trial date is scheduled for January 11.

As a Massachusetts criminal defense attorney, the first thing I notice is that Ehrlich shared the computer with at least two other people. He did not have exclusive access to the computer, and it is unclear how the government came to target Ehrlich, and not his wife or teenage son, in the investigation as to who downloaded or distributed the alleged pornography. Another thing to note is that the government will have to prove that the alleged dissemination of the pornography was purposeful. Peer-to-peer file-sharing programs, such as Limewire, have made that much more difficult. Many users of such programs do not realize that by downloading a file, the user is also sharing the file in a universally accessible folder. File-sharing programs like Limewire have two functions. One is downloading files from other users. The other is making files on one’s own computer accessible to other users. Some of these programs automatically place any downloaded file in a “shared” folder. Often, users don’t fully understand these functions and inadvertently make their files available in the “shared” folder.

Finally, assuming that the police obtained a search warrant before conducting a search of Ehrlich’s laptop, there might be strong arguments for lack of probable cause or particularity if the images were described as they have been in news reports: images of “nude” and “partially nude” children. Not all images of children in states of nudity are pornographic. The First Amendment issues that arise in these types of cases are interesting. While child pornography is not protected by the First Amendment, the determination as to whether an image is child pornography necessarily involves a First Amendment ruling, and the presumption that an image is protected under the First Amendment applies with equal force when the police are seeking items believed to be child pornography. Therefore, according to the First Circuit at least, the determination as to whether there is probable cause for issuance of a search warrant requires “a look” at the images or a very detailed description of them. If the description in this case was simply “images of nude or partially-nude children,” then it probably would not be considered sufficiently detailed.

If you or someone you know has been charged with any Massachusetts crime, including possession or dissemination of child pornography, contact Massachusetts criminal defense attorney Kathleen M. McCarthy on-line or at (978) 975-8060. Attorney McCarthy routinely appears in Lowell District Court, Lawrence District Court and Peabody District Court fighting for the rights of her clients.

Two Holyoke Men Charged With Cocaine Trafficking And Related Drug Offenses

Tue, 25 Dec 2012 17:11:39 -0500

Kelly Arzate and Charles Berard, two Holyoke men, were charged Wednesday with cocaine trafficking and possession with intent to distribute marijuana after police conducted a “routine traffic stop,” according to local news outlets. A state trooper conducted the stop after midnight, allegedly because he noticed that Arzate’s license plate light was out. When he approached the car, he allegedly detected an odor of marijuana. He called for backup and ordered the pair out of the car. Troopers searched the car and allegedly recovered a bag of suspected cocaine in the center console, eight cell phones, $13,000 cash, and 15 pounds of marijuana, which was in the trunk, in individual baggies. Arzate and Berard were then arrested. Police estimate that the street value of the cocaine would have been $20,000 and that the street value of the marijuana would have been $4,000.

An experienced Massachusetts defense lawyer would immediately pick up on the fact that this exit order may have been illegal, and these two defendants might have strong grounds for a motion to suppress evidence. Because possession of one ounce or less of marijuana is no longer a crime in Massachusetts, the odor of burnt marijuana alone cannot justify an exit order. This is because exit orders must be based on reasonable suspicion of criminal conduct. Still, officers might be able to conduct an exit order of a driver if there is reasonable suspicion that the driver was operating the under the influence of marijuana. Here, there doesn’t seem to be any indication that Arzate was operating under the influence of marijuana. It’s telling that he was apparently not charged with that crime. Further, he was stopped not because he was driving erratically or in any way indicative of impairment. Rather, he was stopped simply because his light had gone out. There is no indication in news reports that Arzate exhibited any signs, such as blood shot eyes, of marijuana impairment. Also, it seems that there was no apparent reason for ordering the passenger, Berard out of the car. In order to do that, police would need reasonable suspicion of criminal activity, independent of the driver, on the part of the passenger. The alleged drugs here were apparently not in plain view, since the troopers allegedly recovered them from the console and the trunk. It does not seem that the defendants engaged in any activity that could be perceived as a safety concern. Finally, it is unclear whether the trooper smelled burnt marijuana or fresh marijuana. If he smelled fresh marijuana, that would further weaken the case for reasonable suspicion of OUI drugs. A skillful Massachusetts drug crimes attorney will likely be able to make a strong argument for suppression in this case. Successful motions to suppress often lead to dismissal of drug charges.

Wakefield Man Faces Numerous Counts Of Alleged Sexual Abuse In The Middlesex Superior Court

Fri, 14 Dec 2012 14:02:14 -0500

John Burbine, a forty-nine-year-old Wakefield man, was arraigned in Middlesex Superior Court Wednesday, and he is facing 100 counts involving alleged sexual abuse and child rape, including 40 counts of aggravated forcible child rape. He was held without bail.
Prosecutors allege that Burbine sexually abused thirteen children, including an 8-day-old infant, between August 2010 and August 2012. Burbine, a Level 1 convicted sex offender, allegedly forced the children to perform sexual acts on him, raped them, made them watch pornography, and took baths with them. The government alleges that Burbine and his wife provided day care services, sometimes for long periods of time ranging from weeks to, in one case, 20 months. The day care center, Waterfall Company, was reportedly unlicensed and offered discounted rates. Burbine’s wife, Marian, was charged with multiple counts of reckless endangerment of a child. Prosecutors said that the investigation into her role in the abuse is ongoing.

Police allegedly found images of the children in states of nudity on Burbine’s computer. It’s also alleged that there were video files on the computer depicting Burbine sexually abusing at least one child. The images were allegedly stored in a file called “Little 2.”
Burbine was convicted of indecent assault and battery on a child in 1989. The Department of Children and Families investigated Burbine in 2005 and 2009 after it was alleged that he sexually abused two young boys. DCF found that the allegations were supported, but Middlesex District Attorney Gerald Leone’s office was ultimately unable to bring charges.
Leone called the case one of the most “chilling” of its kind and said that he had “never seen a case this bad,” according to local news outlets.

In the wake of the Burbine publicity, those who have pushed for stronger sex offender legislation criticized the state government for failing to annually post sex offenders of all levels. Burbine, like other Level 1 offenders, was not listed on the Sex Offender Registry Board website along with the Level 2 and Level 3 sex offenders.
Currently, many Massachusetts cities and towns have municipal ordinances imposing residency restrictions on convicted sex offenders. Some even ban convicted offenders from various public places. The American Civil Liberties Union is suing Lynn over its ordinance, claiming that it is unconstitutional. The Lynn ordinance bans Level 2 and 3 offenders from living within 1,000 feet of a school or park. Attorney John Reinstein of the ACLU points out that the ordinance effectively bans sex offenders from living anywhere in Lynn, as ninety-five percent of the city is within the triggering distance. In October, Peabody passed an ordinance that went even further. It bans Level 2 and 3 offenders from schools, parks, libraries, and other recreational areas. The Peabody ordinance is modeled after a 2008 New Bedford ordinance.

Cases like this Burbine one tend to prompt reactionary, probably unconstitutional, laws. It is important to remember that “tough -on -crime” laws passed in times of public outrage, which the Burbine allegations seem to be bringing on, are rarely effective.