Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
 
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Under MGL Ch. 276 § 55, a judge may at his discretion dismiss certain complaints at the request of the alleged victim.

If your charge is assault and battery or another misdemeanor for which you are liable in a civil action your complaint may be eligible.  There are exceptions for offenses committed by or upon a sheriff or other officer of justice for example.  Riotous offenses and offenses committed with intent to commit a felony are likewise cannot be resolved by an for an accord and satisfaction.

In cases where an accord and satisfaction is appropriate the person injured must appear before the court and acknowledge in writing that he has received satisfaction for the injury.  Such injured persons may also want to notify the court of their intention to exert their 5th amendment rights against self-incrimination if the case were to go to trial.  To do so convincingly, it is helpful for the injured person to have a conversation with an attorney other than the district attorney or attorney for the defendant regarding whether or not the injured party actually has a viable fifth Amendment privilege. 

The court may in its or his discretion, upon payment of accrued expenses (including but not limited to court cost and accessed attorney’s fees) discharge the recognizance or supersede the commitment, or discharge the defendant from the indictment or complaint, and may also discharge all recognizances and supersede the commitment of all witnesses in the case.

Some of the factors a judge may consider in evaluating an accord and satisfaction may include: the criminal history of the defendant, especially the nature of past charges, the adequacy of the satisfaction, the relationship of the parties, mitigating factors that led to the charged conduct and any voluntary programs which the defendant has successfully participated in or completed.

What is satisfaction?  Satisfaction can be almost anything for example a written apology, assurances that the conduct will not be repeated, money damages, the return of property, or even an agreement to waive all counter claims against the injured party. 

Defendants should not believe that just because an injured party comes forward and says they want the case dismissed that the judge will be likely to do so.  The MA Supreme Judicial Court upheld the Accord and Satisfaction Statute in Commonwealth v. Guzman, 466 Mass. 344 (2006) holding that the accord and satisfaction was not private justice because the case could continue at the discretion of the judge.  The District Attorney has a right to be heard in these matters and almost always will oppose an accord and satisfaction.

If you have criminal charges pending and need the counsel of an attorney contact the Law Offices of Isaac J. Mass.  If you have been the victim of crime and are entitled to a recovery for personal injuries you received, you may want to contact an attorney to evaluate your damages.  Beyond medical bills you may be entitled to lost wages, pain and suffering, loss of consortium, consequential damages and punitive damages.  Contact the Law Office of Isaac J. Mass for an evaluation of your case before you accept an accord and satisfaction.  


 
 
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What is Melissa’s Law ?

The Massachusetts habitual offender, Chapter 192 of the Acts of 2012, An Act relative to sentencing and improving law enforcement tools, is a comprehensive crime law which addresses many aspects of crime and sentencing and became effective Aug. 2, 2012.

Among other things the habitual offender law:

Establishes a specified list of violent felonies and

Requires anyone convicted a second time of a specified violent felony to serve at least two-thirds of his sentence (up from half) before eligibility for parole;

Requires anyone convicted three or more times of a specified violent felony (who has also served 3 or more years for his/her prior violent felonies) to serve the full, maximum sentence for his/er third or subsequent violent felony without eligibility for parole;

Requires anyone convicted three or more times of a specified violent felony to serve his latest prison sentence consecutive to completion of any previous unserved sentence (rather than concurrently with a previous sentence);

Allows judges to impose 15 to 25 years minimum which must be served on a single life sentence before parole eligibility (up from the current 15 years minimum);

Requires a two-thirds vote by the parole board to release anyone serving a life sentence (except first degree murderers who remain ineligible for parole);

Eliminates any parole eligibility for multiple life sentences; and

Reduces minimum mandatory sentences for certain non-violent drug crimes by about 20% and increases the amount by weight required for mandatory minimum sentencing

Reduces the school zone area from 1,000 to 300 feet in drug cases and excludes school zone violations between 12pm and 5 am.

If you believe the new habitual offender statute may effect your pending case or a have been charged as a habitual offender, with a violent crime, with a drug crime or school zone violation, contact the Law Office of Isaac Mass for an evaluation of your case.  Attorney Isaac Mass has been certified as a zealous advocate by the Committee for Public Counsel and serves as a bar advocate with the Franklin County Bar Advocate Associates.  Attorney Mass also handles criminal appellate matters for the Committee for Public Counsel Services.  Attorney Mass handles some private criminal matters for flat fees.

 
 
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You do not need to go unrepresented to seek a Harassment Prevention order from a Judge.  You have the right to have an actual attorney present your civil complaint seeking a harassment prevention order.  Further, the judge can order your harasser to pay for your attorney’s fees.  While the district Attorney’s Office often will provide the assistance of a victim witness advocate when there are related charges, only an attorney represents you alone and has an attorney-client relationship with you which includes attorney client privilege and confidentiality.  Even if an attorney files your case for your there is no filing fee or charges for certified copies of an order.

What is civil harassment?

Civil harassment is defined Under MGL chapter 258E§1 as:

(i)  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, intimidation, abuse or damage to property; or

(ii)  an act that:

(A) by force, threat or duress causes another to involuntarily engage in sexual relations; or

(B)  constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.

What can a judge actually do?

Temporary Orders:

If you can demonstrates a substantial likelihood of immediate danger of harassment, the court may enter such temporary orders as it deems necessary to protect a plaintiff from harassment, including any of the orders described in permanent orders below.

The court will give your harasser an opportunity to be heard on the question of continuing the temporary order and of granting other relief you request not later than 10 court business days after the temporary orders are entered.

Permanent orders

The court, after a hearing where your harasser can present his/her testimony order that the your harasser:

(i) refrain from abusing or harassing the you

(ii) refrain from contacting the you, unless authorized by the court

(iii) remain away from your household or workplace

(iv) pay you money for the losses suffered as a direct result of the harassment; including, but not be limited to:

A)    loss of earnings

B)    out-of-pocket losses for injuries sustained or property damaged

C)    cost of replacement of locks

D)    medical expenses

E)     cost for obtaining an unlisted phone number

F)     reasonable attorney’s fees

How long is it an order good for?

Any relief granted by the court shall not extend for a period exceeding 1 year.

Every order shall, on its face, state the time and date the order is to expire and shall include the date and time that the matter will again be heard.

If you appear at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the you or to enter a permanent order.

The fact that harassment has not occurred during the pendency of an order does not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated or for refusing to issue a new order.

What if my harasser ignores the order?

Violations of a civil harassment prevention order is a criminal offense and violators face penalties of upto 2 ½ years in the House of Correction, a a fine of upto $5,000 or both

The court may also impose and additional $25 fine and order any of the remedies described above

If the court order a treatment program the violator will be subject to the cost of that program plus a $350 assessment.

For a free consultation on what to do with your harassment case contact the Law Office of Isaac J. Mass.


 
 
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InGarrity v. Conservation Commission of Hingham, (2012) where a judge found that a plaintiff applicant for an order of conditions did not validly waive the statutory requirement that the defendant Hingham conservation commission issue a decision within 21 days, the judge’s conclusion was correct, as the purported waiver was not valid.

The Wetlands Protection Act, G.L.c. 131, §40 (act)
, requires a conservation commission to issue a decision on a requested order of conditions within twenty-one days after it holds a public hearing on the applicant’s notice of intent to perform work covered by the act.

In this weeks Massachusetts Supreme Judicial Court case featuring the Hingham Conservation Commission raised the question whether this deadline may be waived, and if so, how. The court concluded that “an applicant seeking an order of conditions may waive the statutory restriction on the time available to the conservation commission to render its decision, but any waiver must be voluntary in fact, its duration defined and reasonable in length, and notice of the waiver’s duration must be a matter of public record, available to all interested persons.”

Further the court held that Hingham’s 21 day “late-issued [order of conditions] of the commission is without effect.’”

If you are concerned about administrative road blocks from a local, sate or federal agency contact the Law Office of Isaac J. Mass.  Attorney Mass has a over a decade of experience working on and with administrative agencies.  He knows how to how these often volunteer boards operate and understands their mission.  

 
 
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Some Common Questions About Sentencing

1) Concurrent sentences- Where do I serve the sentence?

Prisoners are housed in the institution specified on their mittimus for the sentence imposed on the earliest date. M.G.L. c. 279 §8.

2) Can the court sentence me to a house of correction in a different county?

Yes. M.G.L. c. 279 §15.

3) What Is A ''Forthwith" Sentence?

Pursuant to M.G.L. c. 279 §27, a person currently serving a house of correction sentence may be sentenced on a felony to the state prison, said sentence to take effect "forthwith, notwithstanding the former sentence." as opposed to "from and after" which means waiting for the release from the first sentence "by parole or otherwise" before beginning the second M.G.L. c. 279 §8A .

4) Can a sentence to the house of correction run concurrently with a state prison sentence or vice versa?

There is nothing that prevents the imposition of a house of correction sentence concurrent with a state prison sentence. See Commonwealth v. Parzyck, 41 Mass. App. Ct. 195 (1996).

5) If I am serving a mandatory minimum sentence, can I be classified to electronic monitoring?

No. Commonwealth v. Cowan, All Mass. 546 (1996); Commonwealth v. Morasse, 446 Mass. 113 (2006).

6) Do I receive jail credits for time spent awaiting trial on electronic monitoring?

No. Commonwealth v. Cowan, All Mass. 546 (1996); Commonwealth v. Morasse, 446 Mass. 113 (2006).

7)  How do weekend sentences work?

M.G.L. c. 279 §6A. These sentences are typically served from Friday to Monday, though a court can specify any beginning and ending time for each weekly period of confinement.  If you work weekends you should alert your attorney in advance. Inmates are required to report on his or her own to the correctional facility each week at a time directed by the court. This sentence allows an inmate to maintain employment during the week while serving a sentence on weekends.

8) Can the Superior Court continue a case without a finding (CWOF)?

Yes. Commonwealth v.Powell, 453 Mass. 320 (2009).


 
 
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Late Wednesday night the Massachusetts Senate with Sen. Stanley Rosenberg presiding unanimously voted to close a “loophole” in state law meant to enhance penalties for repeat drunk drivers that was exposed last week by the Supreme Judicial Court when it overturned the license suspension of a two-time offender.

Since then, as first predicted here, the Registries of Motor Vehicles have been inundated with Souza Hearings for reinstatement of suspended licenses.  Senate Minority Leader Bruce Tarr and Sen. Katherine Clark backed the budget amendment, which Tarr said had been “painstakingly” reviewed and edited so as to apply only to repeat drunk drivers.

 Tarr's amendment, seeks to address the SJC ruling that “continuance without a finding” resolutions in cases against certain defendants accused of operating under the influence are not considered convictions under Melanie’s Law, because the language did not include "or alcohol treatment program" and therefore would not trigger increased license revocation penalties for repeat drunk drivers intended under the law.

The amendment passed 37-0 in the final vote of the night.  Rep. Eugene O’Flaherty has said he would pursue similar action in the House to correct Melanie’s Law. The window is quickly closing on this loophole.  If you have a conviction after a CWOF and want you license reinstated, you must apply to the Registry of Motor Vehicles immediately before the House passes a similar measure and the Governor signs the bill.  For more information or representation before the RMV contact the Law Office of Isaac J. Mass.


 
 
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Today the Massachusetts Supreme Judicial Court in Commonwealth v. McDonald, SJC-10968 (2012) ruled that criminal harassment requires more than repeatedly driving slowly by a home, looking and taking photographs and occasionally parking even near a children’s school bus stop.

To obtain a conviction under the criminal harassment statute, G.L. c. 265, § 43A (a ), the Commonwealth must prove that"

(1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions;

(2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion;

(3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim;

(4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and

(5) the defendant committed the conduct or speech, or series of acts, 'willfully and maliciously.'

The Court has long held that "The criminal harassment law was passed in response to a perceived loophole in the stalking statute. The stalking statute expressly included within its reach 'threatening' conduct or acts, but left without remedy those victims plagued by harassment that, although potentially dangerous, did not include an overt 'threat' and thus was not actionable under existing law." O'Brien v. Borowski, 461 Mass. 415 (2012).

In this case, however, the court found that “[t]he act of regularly driving on a public street, looking at people in their driveways or on their porches, or at their dogs and gardens, cannot alone support conviction of a wilful and malicious act directed at a specific person. Even direct advances such as striking up a conversation, asking that a person go out for a drink, or suggesting that a woman ask her boss for time off, which justifiably might engender feelings of discomfort, do not, in the absence of evidence of malicious intent, amount to criminal behavior.” See Commonwealth v. Clemens, 61 Mass.App.Ct. 915, 915- 916 (2004) (reversing judgment of conviction where four out of five initial encounters were innocuous and only fifth in series of encounters qualified as harassment).

The court did no go so far as to “suggest that apparently innocent conduct may never, when considered with other evidence, amount to harassment within the meaning of the statute.”  However, that type of additional evidence was not present in McDonald's case. Without such evidence, an element of the offense of criminal harassment has not been proved, and the conviction cannot stand.

If you have been charged with criminal harassment, stalking or another crime you need a lawyer who understands how to argue every element of a crime.  For an assessment of your case contact the Law Office of Isaac J. Mass

If you are being criminally harassed and the police will not respond to your complaints, you can swear out a civil complaint at your local district court.  After a show cause hearing before a magistrate, if probable cause is found that you are being criminally harassed the District Attorney will evaluate the case.  Criminal Harassment also can rise to the level of tortious conduct and the criminal may be liable for civil damages. For an assessment of your case contact the Law Office of Isaac J. Mass.

 
 
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Today, in Souza v. Registrar of Motor Vehicles, SJC-11123 (2012),Massachusetts Supreme Judicial Court ruled that a Continued Without Finding (CWOF) dismissed after probation does not count as a conviction for the purpose of driver’s license suspension for refusal to take breathalyzer.

Pursuant to G. L. c. 90, § 24 (1) (f) (1) (§ 24 [1] [f] [1]), the Registrar of Motor Vehicles is required to suspend an arrested driver’s license for three years for refusal to submit to a breathalyzer test if the driver has been previously “convicted” of an OUI offense. If the driver has not been previously convicted, the license suspension period is 180 days.

If you have had a second offense OUI conviction but your first offense was continued without a finding, you may be able to get your license back now or at least shorten your suspension period to 180 day.  You may also be able to shorten your suspension period if you have had more than one prior offense.

He Court held held “[i]f the Legislature, in enacting Melanie’s Law, had wanted to include an admission to sufficient facts in the definition of “convicted,” it could have done so explicitly”

The court “recognized that an admission to sufficient facts and an associated continuance without a finding constitute ‘a procedure which often serves the best interests of both the Commonwealth and the defendant. The benefit to a defendant is obvious: he may be able to avoid a trial and ‘earn’ a dismissal of the indictment or complaint, thereby avoiding the consequences of having a criminal conviction on his record.’”  One consequence of the conviction being the longer suspension of the license.

Undoubtedly, this decision will raise the ire of many people who felt the Melanie’s Law was designed to combat the surge of repeat offenders.  They will surely push the legislature to amend Melanie’s Law right away to close this loophole.  If you have had your license suspended by the Registry of Motor Vehicles after any criminal case, you need to have your case reviewed by an attorney right away to see if your suspension can be removed or shortened in duration, before the legislature takes action.  For a evaluation of your case, contact the Law Office of Isaac J. Mass.


 
 
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Police officers heavily depend on so-called field sobriety tests when they suspect a driver of being intoxicated.  The first thing you should know is that you have a constitutional right enshrined in the 5th amendment of the US Constitution to refuse the field sobriety test.  Furthermore, your failure to take the test may not be used against you at trial.  Additionally, unlike a refusal to take a breathalyzer, there are not statutory civil penalties for failing to take a field sobriety test, i.e. you will not lose your license for the refusal. 

The appeal of field sobriety tests for law enforcement is clear: Drunk driving is dangerous and law enforcement agencies need easy-to-use, scientifically and legally valid ways of identifying drunkenness. The field sobriety tests that are most commonly used in Massachusetts, however, aren't as reliable as they should be, and are often administered improperly. This means that completely innocent drivers who haven't even had one drink can sometimes be arrested for driving under the influence of alcohol.

The National Highway Traffic Safety Administration (NHTSA) recommends three specific tests as the most reliable: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. The NHTSA says that police officers who use all three tests on a suspected drunk driver have a high chance of making the right call as to whether or not the driver is actually drunk. In what the NHTSA considers the most accurate, the horizontal gaze nystagmus test a police officer asks a driver to follow a small flashlight side to side with his or her eyes. If the driver is drunk, his or her eyeballs shake as they look to the side. The walk-and-turn test is similar to walking a balance beam back and forth on an imaginary straight line. And the one-leg stand involves perhaps the greatest physical challenge: drivers are must stand still with their arms at their sides, raise one leg six inches off the ground while keeping it straight and pointing at their toes, looking at their raised toes, and count forward from 1,001. Swaying, raising arms for balance, hopping, putting the foot down, or starting to count before the police officer instructs are all be viewed as signs of drunkenness.

The scientific basis of field sobriety tests lies in a 35-year-old study of how well field sobriety tests could identify blood alcohol content. That study was conducted with only 238 subjects, mostly men 22-29 years old, and no control group. The Washington Post reported, "hundreds of thousands of drivers have been arrested -- no doubt many deservedly so -- on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol."

Besides the tests' scientific faultiness, they can also falsely identify as drunk people who just have medical issues. Balance disorders affect 40% of Americans at some point in their lives, and dizziness and vertigo are the third leading cause for visits to doctors. The older you get, and the heavier you get, the worse your balance. For an aging population with a growing number of overweight and obese people, the one-leg stand test sounds like a pretty ineffective gauge of whether someone is drunk.  The CDC reports that by 2030 42% of the US population will be obese.

If you have been arrested or charged with Operating Under the Influence you need a criminal attorney who knows, how to point out the scientific problems with both the field sobriety test, the breathalyzer, and the administration of those tests in your case.  If you would like a free consultation on your case, contact the Law Office of Isaac J. Mass.  Attorney Mass’ Greenfield office is located the heart of Franklin County, a block from the Greenfield district court. Attorney Mass represents clients with criminal and civil motor vehicle offenses throughout Franklin, Hampshire, Hampden and Berkshire Counties as well as across the Commonwealth of Massachusetts.  Attorney Mass is a featured speaker at driving schools in western Massachusetts.


 
 
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_ Today, the Massachusetts Appeals Court, in Cesar vs. Sundelin, No. 11-P-351(2012) found that in dividing a marital estate that includes a family business a judge of the Probate and Family Court has the authority to enjoin the party that no longer will have any ownership in the business from operating a competing business.

Although the court located no Massachusetts case that holds that a probate judge has specific authority to impose non-compete orders, the court looked the Supreme Judicial Court of Maine reasoned, "Without such an agreement, the substantial value of the intangible good will would be lost or the parties would be left to compete in recapturing this portion of their marital property." Lord v. Lord, 454 A.2d 830, 834 (Me.1983).

The Appeals court noted that the Massachusetts Supreme Judicial Court held more than one century ago, "[G]ood will is property, and is a valuable asset in [an individual's] business." George G. Fox Co. v. Glynn, 191 Mass. 344, 348 (1906). Therefore the court found that, the good will of a business is part of the marital property subject to equitable distribution, and a probate judge may exercise his equitable authority as necessary to effect the distribution. See Santagate v. Tower, 64 Mass.App.Ct. 324, 328 (2005).

 The Appeals Court did recognize that the terms of any such order must be "reasonable and no broader than necessary to protect the good will included in the valuation and transfer." Lord v. Lord, supra. Cf. Wells v. Wells, 9 Mass.App.Ct. 321, 324-325 (1980) and ultimately remanded the case for such a determination.

It remains to be seen if this decision is further appealed as it gives great latitude to judges acting in equity in areas outside of the family and probate court.  Historically, in Massachusetts there has been no equitable ability to impose a non-compete provision on parties.  All of the case law on the enforceability of non-compete agreements are in the contractual context. See e.g.Richmond Brothers, Inc. v. Westinghouse Broadcasting Co., Inc., 357 Mass. 106 (1970) (“An employer is not entitled to protection against ordinary competition.” ); Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714 (1961) (“It has been long settled in this Commonwealth that a covenant inserted in a contract for personal service restricting trade or competition or freedom of employment is not invalid and may be enforced in equity provided it is necessary for the protection of the employer, is reasonably limited in time and space, and is consonant with the public interest. What is reasonable depends on the facts in each case.").

If you have a divorce which will involve a division of a family business, it critical that you have an attorney who understand non-compete agreements and can argue before a judge why any particular injunction against doing business is appropriate or overly broad based on its duration, location, and industry.  Further you will need an attorney who can work with industry experts who can not only value good will, but also offer opinions on the impact of competition on that good will.  If you have questions about your divorce contact the Law Office of Isaac J. Mass to arrange a no cost consultation.


 

(c) 2012 Law Office of Isaac J. Mass, 289 Main Street, Suite 201 Greenfield, MA 01301