Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
 
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Today in COMMONWEALTH vs. Christopher DOYLE, No 11-P-1779, the Massachusetts Court of Appeals held damage done to a container for the sole purpose of obtaining the property inside a container is not Malicious destruction of property.

To prove malicious destruction of property, according to G.L. c. 266, § 127 a defendant's actions must be both "wilful" and "malicious." Under Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 4 (2001). "In addition to the intent to inflict injury to property, the crime requires a state of mind infused with cruelty, hostility or revenge."

The Appeals Court held that this case was like Redmond where the defendant was arrested while apparently in the process of stealing computer equipment. In pursuit of that goal, Redmond had:

1)      ripped a security alarm from the wall

2)      broken a window

3)      and forcibly opened the front door of the office

4)      A second door, leading into a computer room, appeared kicked in

In Redmond the Court of Appeals held that "[a]lthough clearly intended, such property damage was nothing more than the 'the adventitious by-product of a wholly discrete criminal enterprise' (the theft of the computers) and was not 'gratuitous, excessive violence purposefully designed to intimidate and overpower,' ... or destructive activities that were by design and hostile to the owner of the property." Redmond, quoting from Commonwealth v. Wynn, 42 Mass.App.Ct. 452, 456 (1997).

In Commonwealth v. Morris M., 70 Mass.App.Ct. 688 (2007) the Appeals Court also found destruction of property caused by driving a Jeep across the driving range of a golf course and smashing the car into a pole was not malicious because the juvenile was driving the vehicle in order to escape another who apparently intended to harm him.

In the case of Mr. Doyle, the Appeals Court believed it was clear that the damage was done in an effort to steal from the ATM and not with "a state of mind infused with cruelty, hostility or revenge." as required under Commonwealth v. Redmond. Even viewed in the light most favorable to the Commonwealth, the evidence was not sufficient to establish the necessary element of malice and so the conviction for Malicious Destruction of Property was overturned.

If you have been charged with malicious destruction of property or another crime, it is important to have an experience criminal defense attorney who understands all the elements of each crime, and what the legal definitions of each element are.  Sometimes a complaint can be dismissed at a pretrial stage or even following the district attorney's opening statement, if they do not allege an essential element of the crime.  For a consultation, contact the Law Office of Isaac J. Mass.



 
 
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Today, in Commonwealth v. Reyes SJC 11270 (2013), the Massachusetts Supreme Judicial Court held that the storage of a firearm in securely locked container (like a glove compartment) inside a parked vehicle is not a violation of the carrying statute and may be adequate under the storage statute.

 Amaury Reyes, was convicted in the Salem District Court of improperly carrying a firearm in a motor vehicle in violation of M.G.L. c. 140, § 131C (a) (carrying statute), and unlawfully storing a firearm (after leaving it in his motor vehicle) in violation of M.G.L. c. 140, § 131L (a ) and (b ) (storage statute). Reyes possessed a class A license permitting him to carry a firearm for all lawful purposes under M.G.L. c. 140, § 131 (a ). On April 10, 2010, he drove from his home to work, during which time he carried his personal firearm with him in a holster without passenger. When he arrived at  work, he parked his motor vehicle, removed the firearm and holster from his person, placed them in the glove box, and locked the vehicle.

Reyes consented to a search of his vehicle alerting the officer that his firearm was in the glove box of his
vehicle. He acknowledged that the firearm was not outfitted with a cable locking device. He unlocked
the car with a remote opener. The officers entered the vehicle from the passenger side, opened
the glove box, and retrieved the firearm in its holster. The firearm contained a loaded magazine, but no round in the chamber.

On appeal Reyes argued insufficient evidence at trial to support his convictions under the carrying and storage
statutes.

The carrying statute provides in relevant part that "no person carrying a loaded firearm ... shall carry the same in
a vehicle unless such firearm while carried therein is under the direct control of such person." The Court
held that there was no evidence that his firearm was out of his possession (or his direct control) when he traveled to work in his vehicle. They further held that the carrying statute does not apply once the defendant leaves his
vehicle and leaves the firearm in it. The Court held that when Reyes left his motor vehicle and the firearm in it, he became subject to the storage statute because he was storing or keeping his firearm in a "place" neither on his
person nor "under the control of the owner or other lawfully authorized user." G.L. c. 140, § 131L (a ).

 As to the storage charge, the court maintained that a motor vehicle is not itself a securely locked container.
However they held “that the storage of a firearm in a securely locked container within a motor vehicle would
satisfy its requirements.” This may include a locked glove compartment if it locks according to the SJC. 

If you have been charged with a firearms violation you may need a criminal defense attorney who is abreast of the latest developments in firearms statutes and new court rulings reacting to the deluge of firearms litigation.  For a consultation contact the Law Office of Isaac J. Mass.


 
 
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Hardship Licenses, sometimes called a Cinderella License are issued by the Massachusetts Registry of Motor Vehicles to some offenders for a legitimate purpose such as going to work, attending school, or receiving medical treatment. Hardship Licenses are valid for a consecutive 12 hour period (e.g.  8:00 AM to 8:00 PM). Such licenses are only granted to Massachusetts license holders.  In order to apply for a hardship license, you must attend a hearing at a Registry of Motor Vehicles hearings site

A hardship will only be considered for the following offenses certain offenses. You will need all required documents with you when you meet with the Hearing Officer.  Obtaining a hardship license is sometimes difficult, especially without a
skilled lawyer. Although an applicant may meet all requirements, issuance of a hardship license is only granted at the reasonable discretion of the Registry of Motor Vehicles, based on the facts of the case.

An attorney can help present your case in the light most favorable to you emphasizing the issues that are most important to the Registry of Motor Vehicles.  For example in accordance with Melanie's Law, the Registry of Motor Vehicles is changing its policy regarding who is eligible for a hardship license. To be eligible for a hardship license, you may now be required to present proof that you do not have access by public transportation to your required destination.  You should be represented by an attorney when seeking a hardship license.  

For an opportunity to consult a an attorney about representation at a Registry of Motor Vehicle hearing contact the Law Office of Isaac J. Mass.  The Law Office of Isaac J. Mass can also represent you in hearings before the Board of Appeals after an unsuccessful hearing at the Registry of Motor Vehicles. 



 
 
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December  18th, 2012 , in Commonwealth v. Jones,  
the Massachusetts Supreme Judicial Court held that it was ok to deny a defendant’s right to admit into evidence that, shortly after he had declined to take a breathalyzer test, he changed his mind and requested but was not given the test.


On May  14, 2010, a witness was driving north on Route 10 in Southampton when she reported a pickup truck being driven erratically. The defendant was the driver of the truck and was stopped by the Easthampton police.  The police administered a field sobriety test, and the defendant performed poorly.  He was then placed under arrest.

The defendant, prior to trial, moved that he be permitted to testify that, at the police station, he initially declined to take a breathalyzer test, then "shortly afterwards" changed his mind and asked to take the test, but one was not administered.  Although the prosecutor did not  object, he wanted to introduce evidence that the defendant did not recant his initial refusal, and that he had also refused certain field sobriety tests and suggested the proposed testimony would “open a can of worms”. The judge denied the defendant's motion. 
 
The Supreme Court found, the judge acted within the scope of his discretion in excluding the testimony. The defendant sought to testify that, shortly after declining to take a breathalyzer test, he requested to do so.  Such evidence could only exonerate the defendant by suggesting that he thought he was not intoxicated at the time the request was made. But the court has held that "consciousness of innocence is of very little value, because there are a variety of different motives that can prompt action consistent with innocence." Commonwealth v. Espada, 450 Mass. 687, 698 (2008). 
 
The court  believes a recantation of an initial refusal to take a breathalyzer test is likely motivated by the desire to avoid suspension of the suspect's driver's license as it is with consciousness of innocence.

IF you have been arrested for operatining under the infulence or neglegent operation, contact the law office of Isaac J. Mass for a consultation.

 
 
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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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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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_ Getting a job or housing in this economy is especially competitive.  It can be almost impossible with a criminal record.

May 4, 2012 significant aspects of the Criminal Record Information (CORI) Reform Act of 2010 will go into place.  Most notably, the waiting period to have criminal records sealed for certain felonies and misdemeanors will be substantially shortened.  The waiting period to seal felonies is to be lowered from 15 years to 10 years.  Meanwhile, the waiting period for sealing misdemeanors will be reduced from 10 years to 5 years.  Unlike the current law the CORI Reform Act sets the start date for the waiting period at either release or disposition (if there was no incarceration), instead of waiting for the end of probation or parole for the clock to start.  Note, that a subsequent offense restarts the tolling period for all prior offenses.

Sealing is not automatic, but there are three basic circumstances where a criminal record can be sealed:

1)      Cases that were dismissed without probation or that resulted in a not guilty at trial can be sealed immediately;

2)      Some convictions or admissions may be sealed after the waiting period;

3)      An offense that is no longer a crime may be sealed (Ex: tattooing, sodomy, possession of under an ounce of marijuana)

The waiting periods for sex offences remain longer at 15 years and require the applicant to have no current duty to register as a sex offender and to have never been classified as a level 2 or 3 sex offender.  Some crimes can never be sealed including certain firearms offences, various forms of corruption and crimes against public justice such as: resisting arrest, escape from custody, disrupting a court proceeding, witness intimidation, perjury and false reports.

While employers and the general public will no longer have access to seal records they are still available to some agencies include law enforcement, municipalities licensing particular positions, and housing authorities. In some custody and domestic abuse cases the court may look at sealed records in cameral (privately by the judge in his or her chambers).  Previously the presence of a sealed record which could not be viewed was present on reports often making the employment situation worse for those with minor crimes that had been sealed.  Under the new law, in most cases the record will not reflect that a sealed record even exists.

If you would like assistance with sealing your criminal record contact the Law Office of Isaac J. Mass.  Located in Greenfield, Massachusetts in the heart of Franklin County, attorney Isaac J. Mass works with individuals to correct and seal their criminal records allowing them to get a new start.


 
 
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_ Yesterday, The United States Supreme Court has just handed down two split decisions on the rights afforded to criminal defendants in regards to plea bargaining. 

 In Missouri v. Frye,  No. 10-444 (2012), the court found that a Defense Attorney had a duty to convey all written plea offers to the criminal defendant and the failure to do amounts to ineffective assistance of counsel and a violation of the defendant’s  sixth amendment rights.  This decision is not likely to have far reaching implications.  While it is true, though some attorneys acting on previous instructions of their defendants refuse plea offers without communicate such offers to the defendant, very few of these offers are in writing.  Typically a plea agreement, or “green sheet” as they are called in Massachusetts are not drafted until there is an agreement between the parties.  An assistant district attorney, particularly in the face paced hurly burly of the District Court, would be unlikely to draft plea offer without the prior acquiescence of the defendant.

In Lafler v. Cooper, No. 10-209 (2012), however, the court held that bad advice from defense counsel about whether or not to take a plea agreement may amount to ineffective assistance of counsel and a violation of the defendant’s sixth amendment rights.  Where a defendant refused a plea offer from the prosecution which he or she would otherwise accepted, on the basis of an attorney’s recommendation which itself was grounded in an error in law, the split court found the criminal defendant’s sixth amendment rights were violated.  In this case, the defense attorney told his client that the prosecution would not be able to prove “intent” to kill, where the victim was shot below the waist. 

WHY IT MATTERS

This case has much farer reaching implications.  Defense attorneys regularly make judgments about what they believe the prosecution can prove.   Elements of a crime, including intent, are facts for a jury to consider and they must be proven beyond a reasonable doubt.  These are not legal principals.  A jury considers all the evidence in coming to a decision and the weight it gives any individual piece of evidence is up to the jury alone.  The fact that a victim was wounded in an area that produces a non-lethal wound is certainly a factor a jury might consider in weighing intent.  The problem as it appears hear is the confidence with which the attorney presented his opinion about how the jury would weigh the evidence.  While the attorney suggested the prosecution could not prove its case, in fact he would have been better to have advised his client that in his opinion and based in his experience it would be unlikely that a jury might find the element of intent based on those facts.  The absoluteness is what the court found problematic.

MAKING YOUR CASE

Proving the advice your attorney gave you and that you would have accepted the plea otherwise is somewhat problematic.  In this case, the defendant was on record having indicated that he would accept the plea, before he had an opportunity to consult with counsel.  While that can occur, it is infrequent and most initial offers are not on the record.  Harder still is the proving the advice an attorney gave you unless it is in writing.  Of course, a criminal defendants communications with his or her attorney are privileged and confidential.   Because they are privileged and confidential they rarely take place in front of witnesses.   That, privilege and confidence, however, belongs to the defendant and not the attorney, and a defendant can compel his trial attorney to take the stand and reveal the advice he gave the client.

THE REMEDY

If the only difference between the trial and plea is that the defendant would have received a lesser sentence under the plea, the court found, that the trial court should have an evidentiary hearing to determine whether the defendant would have accepted the plea. If so, the court may exercise discretion in determining whether the defendant should receive the term offered in the plea, the sentence received at trial, or something in between.

If, however, the offered guilty plea was for less serious counts than the ones for which a defendant was convicted after trial, or where a mandatory sentence confines a judge’s sentencing discretion. In these circumstances, the proper remedy may be to require the prosecution to reoffer the plea. The judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea, or leave the conviction undisturbed. In either situation, a court must weigh various factors. For example, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.  Additionally, a judge is not required to disregard any information concerning the crime discovered after the plea offer was made.

THE DANGER

Prosecutors are concerned that this case may open a flood gate of litigation, for everyone who accepted a plea over the last 30 years.  As over 90% of all state and federal convictions are the result of plea agreements, this is not a minor concern.  The court, however, looked to the 6th circuit where this rule has already existed and found the courts able to handle the volume of litigation.  A very real concern for defendants is that prosecutors are less likely to offer plea agreements.  Because the defense counsel’s advice is privileged and the prosecutor has no right to know what advice was given, he or she may be gun shy about offering an agreement only to be refused and not know the basis of the refusal.  It may result in the need for a judicial colloquy on each refused plea prior to proceeding to trial, in order to assure that the defendant was afforded al the sixth amendment protection and that a trial would not be a waste of judicial resources where the defendant would have accepted had he or she been correctly advised of the law.   Note currently such colloquy’s caused only when defendants accept pleas not when they refuse them.  This is real danger to judicial economy.  Additionally, defendants, may be intimidated by judges who appear to be second guessing the advice defense counsel has given them, deteriorating the attorney client relationship.

HOW TO ACT

If you or a loved one has accepted a plea agreement and believe the protections of the sixth amendment were not given, contact the Law Office of Isaac J. Mass for a free initial consultation.  We offer flat rates to investigate and review records find errors of law.  You need not be currently incarcerated to take advantage of this decision.  If you were convicted of a serious crime for which you have already served your time, but were offered a plea for a lesser offense, this case may help clear your record.  You can never get back time served, but a cleaner record may make it easier in some cases to find employment or other services.


 

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