Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

What it Means to be an Accessory after a Crime

Recently, Massachusetts State Police reported the conclusion of a six-month investigation, “Operation Golden Ticket” which led to 171 counts being brought against five individuals including breaking and entering, conspiracy, larceny, and receiving stolen motor vehicles. The men being charged committed offenses in Connecticut, Massachusetts, New Hampshire, and Rhode Island. Led by a man referred to by law enforcement as “Willy Wonka,” the offenses involved 17 burglaries and 12 car thefts with more than $300,000 of items being stolen. While three of the men have since been apprehended, two of the suspects still remain at large. If you have been involved in a criminal conspiracy like this and are now facing charges, it is crucial to understand that there are numerous offenses that you can end up facing including involvement as an accessory after the fact. Because the penalties that result from these charges are often severe, it is a wise idea to contact an experienced attorney in these situations.

What it Means to be an Accessory After the Fact

To be convicted as an accessory after the fact, the Commonwealth of Massachusetts must establish that beyond a reasonable doubt the following:

  • The defendant aided a principal felon or accessory to an offense after the commission of the crime

  • The defendant was aware that the other person had committed or was an accessory in the commision of the offense

  • The defendant aided the offender with the intent to help him or her avoid or escape arrest, detention, punishment, or trial

What Penalties You can Expect to Face

The exact penalties that you can expect to face if you were an accessory after the fact depend on the offense involved as well as various other details. The more serious the offense with which you are charged, the more likely that you can expect to face substantial fines and even lengthy sentences of imprisonment. After the 1994 case of Commonwealth v. Talbot, Massachusetts courts have ruled that being an accessory after the fact is not a lesser element of other crimes, and you can end up being convicted of accessory after the fact as well as other offenses. Because the penalties are often severe, it is best to obtain the assistance of an experienced lawyer in these situations who can immediately begin to help you create a strong defense. One of the defenses that can be raised if you are charged as an accessory after the fact is that you are a protected family member through adoption or blood of the person who committed the offense.

Contact a Criminal Defense Attorney Today

If you face charges as an accessory after a crime, it is critical that you quickly obtain the assistance of an experienced criminal defense lawyer. Attorney Edward Molari is committed to helping you create the strongest defense possible. In his years of helping others who have faced similar charges, attorney Molari has gained the experience to know what it takes to fight for the best possible outcome in your case. Contact his office today to schedule an initial free consultation.

Understanding the Levels of Sex Offense Crimes in Massachusetts

Recently, the Massachusetts State Police captured one of the state’s most wanted sex offenders in a New York City area motel room. The man is a classified as a Level 3 sex offender after being convicted of the 1991 rape of a child under the age of 16. While the man completed a prison sentence, he was wanted for four counts of failure to register as a sex offender. The Massachusetts Executive Office of Public Safety and Security classifies sex offenders as individuals who live in, work at, or attend an educational facility in Massachusetts and who have been convicted of a sex offense. The state’s sex offender classification also includes youthful offender and juvenile delinquents who have been charged with sex offenses, individuals who have been released from incarceration or probation in Massachusetts, and people who have been classified as sexually dangerous individuals.

Since August 1, 1981, the Commonwealth of Massachusetts has utilized a sex offender rating system. The more serious offense with which you are charged, the higher the sex offender classification you will receive. Because higher classifications can result in particularly severe penalties, to avoid one it is often in your best interest to obtain the assistance of a seasoned criminal defense who understands how to best create a strong defense.

No Duty to Register

Individuals in this category are not at risk of re-offense and are also not viewed as a danger to the public. As a result, all of the details about a person in this classification are removed from the Commonwealth’s Sex Offender Registry. Few sex offenders qualify for this category, and individuals who are convicted of certain types of offenses including sexually violent crimes are automatically excluded from this category.

Level 1 Offenders  

Individuals in this category are at a low risk of committing sexual offenses in the future. People who qualify under this category are required to annually submit sex offender registration to the Sex Offender Registry. A degree of privacy is offered to individuals in this category and information about these offenses are not immediately available to the public.

Level 2 Offenders

To qualify as a level 2 offender, a person must be viewed by the law as a moderate risk at repeating the offense. Level 2 offenders are required to re-register annually in person at their local law enforcement station. Details about level 2 offenders are less private than level 1 offenders. Details about the offense that resulted in the classification is kept at police departments and the Sexual Offender Registry Board, but to find out details about the offense, a person must request them in person or by mail.

Level 3 Offenders

Individuals who qualify as level 3 offenders are classified as a high risk for repeating the offense in the future. If you qualify as such an offender, you must re-register annually at your local police station. Details about level 3 offenders have the least degree privacy of all sex offenders. Information about level 3 offenders can be obtain from law enforcement station, the Sex Offender Registry Board, or the internet.

Contact an Experienced Criminal Defense Lawyer

If you are charged with a criminal offense in the Commonwealth of Massachusetts, you should not hesitate to contact an experienced attorney who can help create a strong defense. Speak with attorney Edward Molari today to begin taking steps to make sure that your case resolves in the best possible manner.

Expunging or Sealing Your Criminal Record in Massachusetts

Statistics reveal that annually there are over 10 million arrests made throughout the United States, which results in millions of people with a permanent criminal record. Unfortunately, a criminal record can have a substantial impact on a person’s career, education, and future goals. Fortunately, in the Commonwealth of Massachusetts, there are various ways to expunge or seal records that offer the opportunity to plan for a future without the obstacles created by having a criminal record.

The Expungement Process in Massachusetts

Expungement is a process that “erases” your criminal record. Unfortunately, in Massachusetts, expungement is only offered in a limited set of circumstances, which include situations involving erroneous or wrongful convictions as well as criminal records that are incorrectly made under the wrong identity. During the expungement process, you will petition the court to grant an expungement of your record. To be granted an expungement, you must demonstrate that your record is eligible for expungement. Because the expungement process is particularly complicated, it is often a wise idea to obtain the assistance of a skilled attorney to help you navigate through it..

Sealing Criminal Records in Massachusetts

Sealing a record is not the same as expunging it. When you seal a record, you greatly limit the number of people who are able to access information about your criminal past. As a result, employers who might hire you are unable to see these records. Massachusetts law allows certain cases without a conviction to be sealed. These cases includes situations in which a person was found not guilty by a jury, dismissals without probation, or failure to indict by a grand jury.

Much like the expungement process, sealing a record in Massachusetts involves a complex body of laws, which is why many people find it essential to obtain the assistance of a seasoned attorney.

The way in which records are sealed is divided by the offense’s classification:

  • Juvenile Offenses. Records are allowed to be sealed after a three year waiting period.

  • Misdemeanors. Records are allowed to be sealed five years after you were convicted or completed your sentence.

  • Felonies. Records are allowed to be sealed ten years after you were found guilty or completed your sentence.

To have a record sealed in such a way, a person is prohibited from committed another offense of any type during the waiting period. The process to have a record sealed is similar to how records are expunged in Massachusetts, which is means that it is very helpful to have a knowledgeable lawyer guide you through this process, as well.

Speak with an Experienced Criminal Defense Attorney Today

If you are interested in expunging or sealing a criminal record in Massachusetts, you should not hesitate to contact a seasoned attorney who understands the numerous complex laws that control this process. In his years of experience, attorney Edward Molari has helped many people navigate the expungement and record sealing process and he will remain committed to obtaining the results you deserve.  

One-Man Crime Spree in Mansfield

According to The Sun Chronicle, a 27 year old man is set to be arriagned today in the Attleboro District Court on charges of armed robbery while masked, unlawful possession of a firearm, failure to stop for police, and attaching motor vehicle plates.

The report describes a series of offenses beginning with a 2:00 A.M. robbery in Stoughton, which preceded the incidents in Mansfield where the man is alleged to have robbed a convenience store, and tried to carjack a local resident during his attempt to escape.

While searching for the suspect, who was identified as Rosa, Foxboro Police received a telephone call about an attempted carjacking.

Rosa attempted to carjack the Foxboro resident’s vehicle at knife point, police allege, but then fled into nearby woods without taking the vehicle.

Rosa was taken into custody at gunpoint by troopers and Foxboro officers a short time later.

From the description, it would appear that the man will be charged with two counts of armed robbery, at least one of which occurred while maksed, which increases his mandatory minimum to 5 years for the gas station offense.  There is no maximum punishment for robbery, so the maximum sentence for that charge is, at least theoretically, life in prison.  It is almost unheard of for someone to get life in prison for robbery

An important fight in this case will come down to whether the state can make its case on carjacking. First, the fact that he did not succeed in obtaining control of the car is no defense for him, because the carjacking statute (G.L. c. 265, s. 21A) reads as follows:

Whoever, with intent to steal a motor vehicle, assaults, confines, maims or puts any person in fear for the purpose of stealing a motor vehicle shall, whether he succeeds or fails in the perpetration of stealing the motor vehicle be punished . . .

Second, if he was armed at the time, his mandatory minimum goes up to seven years.  Police say they found a gun in the vicinity where he was arrested; and they say he used the gun in the convenience store robbery.  If the carjacking victim cannot say they saw a gun, this may turn into a circumstantial case on the question of whether this man's carjacking charges will carry the 7 year minimum for armed carjacking, or whether he can only be charged with the lesser unarmed carjacking offense that has no mandatory minimum.

 

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Massachusetts Rules on What Constitutes Probable Cause

One of the most common grounds on which individuals in Massachusetts defend against drug charges is when involved law enforcement lacked probable cause for their arrest. 

A state appellate court recently wrote a decision in a drug case concerning whether law enforcement lacked probable cause in obtaining a warrant to search a person’s apartment. The court ultimately ruled that information provided to law enforcement constituted probable cause.

How the Case Arose 

Law enforcement was given information by a confidential informant that the defendant in this case was selling illegal drugs from his apartment. The informant also provided law enforcement with a description of the defendant in addition to his name and address.

Law enforcement later arranged for the informant to purchase drugs from the defendant. After the informant reported that he purchased the drugs from the defendant, law enforcement obtained a search warrant for the defendant’s apartment. After executing the warrant, law enforcement found narcotics as well as paraphernalia.

In a pre-trial motion to suppress, the defendant argued that the search warrant was defective because law enforcement had failed to establish that probable cause existed at the time that the warrant was obtained. In support of his argument, the defendant claimed that law enforcement failed to establish that the man had entered his apartment or obtained the drugs in question from his apartment.     

The Response by the Appellate Court

The appellate court began its opinion by noting that law enforcement is required to establish an informant’s basis of knowledge as well the informant’s veracity (or ability to be trusted) before a valid search warrant can be obtained.

While the defendant acknowledged that law enforcement had satisfied the basis of knowledge prong because the informant had told law enforcement that he had recently purchased cocaine from the defendant, the defendant argued that law enforcement had failed to satisfy the veracity prong of this test. The court then noted that law enforcement is able to establish an informant’s veracity through controlled buys or situations in which the informant purchases drugs from the person suspected of selling drugs.

As previously mentioned, the defendant argued that the buy was improper because law enforcement had failed to watch the informant enter the defendant’s home. The appellate court responded by rejecting the defendant’s argument and held that because law enforcement had watched the informant walk toward the door and return soon after with illegal drugs, it was sufficient enough to constitute probable cause for a warrant to enter and search the defendant’s apartment.   

Speak with an Experienced Criminal Defense Lawyer

If you have been charged with a crime in Massachusetts, one of the best steps to take is to quickly obtain the assistance of a skilled criminal defense lawyer. Attorney Edward Molari is an experienced criminal defense lawyer who has helped defend the rights of numerous individuals charged with felony and misdemeanor or drug crimes. Contact our law office today for assistance.

What You Should Know About Massachusetts’ Wiretap Law

In August of 2018, significant attention was paid in the news to allegations that President Trump’s attorney, Michael Cohen, had secretly recorded a conversation between the two regarding Stormy Daniels. President Trump appeared surprised when he learned that Cohen had recorded this conversation. 

Due to New York’s wiretap laws, attorney Cohen’s decision to record this conversation was likely not illegal. If this case had occurred in Massachusetts, however, Cohen would have been in violation of the state’s wiretap laws.

Because this body of laws involves an important and complicated area of criminal law, it is important to understand some important details about Massachusetts’ wiretap law. If you are charged with one of these offenses, it is wise to quickly obtain the assistance of a skilled criminal defense lawyer.

What is Prohibited Under the State’s Wiretap Law?

There are several types of behavior that are strictly prohibited under Massachusetts’ wiretap law, which include:

  • Secretly listening to or recording

  • Any oral communication

  • With an interceptive device

  • Without authorization by all parties

In accordance with Massachusetts law, recording a person is still illegal even if the speaker does not have an expectation of privacy and is aware that other people might overhear the conversation. It is also important to understand that “recording” someone can include intercepting text messages by viewing and transcribing them to be used at a later date. 

It is also critical to point out that this law only applies if the recording is done in secret, which means that if a person has actual knowledge that the conversation in question is being recorded or there is evidence that the person knew he or she was being recorded but continued speaking, then the recording is not done in secret.

Exceptions to the Wire Tap Act

There are several important exceptions to situations in which the Massachusett’s wire tap act is applied. Some of the exceptions include:

  • Agents of communications carriers who work at facilities that use the transmission of wire communications

  • Financial institutions that record phone calls with institutional trading partners as part of the ordinary course of business

  • Law enforcement officers who obtain warrants to secretly record a conversation

There is currently an ongoing debate about the legality of violating the wiretap law to record conversations a person has with law enforcement officers. It currently remains uncertain, however, exactly how these issues will resolve.

Penalties Associated with the Wiretap Act 

The offense of willfully intercepting a person’s communication is classified in the state of Massachusetts as a felony. A person convicted under this body of law faces a maximum of two and a half years in the house of corrections or five years in a state prison.

A person whose rights are violated under this act is also able to initiate a civil suit to recover actual damages, punitive damages which are designed to punish the person who violated the law, and legal fees.

Contact a Skilled Criminal Defense Lawyer

If you are charged with a violation of the Massachusetts wiretap act or any other type of criminal act in the state of Massachusetts, you should not hesitate to obtain the assistance of a skilled criminal defense attorney. Contact attorney Edward Molari today to begin taking steps to make sure that your criminal case resolves in the best possible manner.

Massachusetts Governor Signs Red Flag Law

In July 2018, Massachusetts’ Governor Baker signed a law that allows courts to order firearms as well as other weapons to be taken away from a person who poses a risk of causing bodily injury to him or herself or any other person. This new law has been referred to as the “red flag” bill and is one of numerous laws that have been passed following the recent rash of school shootings. 

The Reasoning Behind the Red Flag Bill

Law enforcement in Massachusetts already has the discretion to decide whether to suspend or revoke a person’s firearm license if it believes that the individual is likely to engage in violence. These powers held by law enforcement were limited, however, in that they were not designed to revoke ownership of a firearm or any other type of weapon quickly.

This new law was created to make it easier to remove firearms when there is an indication that a person is in crisis or has the potential to engage in violence.

The Process Created by the Red Flag Bill

Under this new law, a petition for an “extreme risk protection order” is filed by a family or household member or by law enforcement in the district court or Boston Municipal Court that covers the municipality in which the firearm owner lives. This petition must state why the person filing it believes that the individual in question is likely to harm someone. Courts are granted broad discretion under this new law to determine whether a person presents a risk of harm at any time.

If the court determines that such a risk exists, it can order the respondent to hand in the firearm or weapon for a period of time of up to one year. While courts are able to respond in emergencies, many times a hearing will be scheduled within 10 days to contest the petition. If the court grants an order, it must give both the petitioner and the respondent details about crisis intervention, mental health, and substance abuse treatment.

The Standard Applied in Red Flag Cases 

While these orders refer to “extreme risk,” the standard that courts must apply is whether a risk exists of causing bodily harm, which means that responsible gun owners in some situations can end up having their firearms taken away. For this reason, firearm owners in Massachusetts are likely to challenge this law due to the amount of discretion that it gives the government.

The Helpful Element of the New Law

Under the new Red Flag law, a person is able to seek orders based on concerns for another person and the desire to obtain help for this individual. The new law also gives individuals who are engaged in dangerous situations the ability to work toward defusing conditions that could eventually lead to violence.

Contact a Skilled Criminal Defense Lawyer

If you or a loved one has been subject to the Red Flag law or any other body of criminal code in Massachusetts, you should not hesitate to contact attorney Edward Molari today for assistance.

California Eliminates Cash Bail; Boston to Follow

Bail

California has now become the first state to pass legislation aimed at eliminating the cash bail system. According to the reporting, instead of fixing a monetary amount of bail, the court will use a scoring system to determine the person's likelihood of appearing in court, and the seriousness of the alleged crime. People who are deemed too dangerous to be released would be held in custody, and people who need incentives to appear would be released on conditions including things like GPS monitoring.

Of course, not everyone is happy about the legislation. David Quintana, a lobbyist for the California Bail Agents Association is quoted as saying “You don’t eliminate an industry and expect those people to go down quietly,” “Every single weapon in our arsenal will be fired.” If they decide to pick a test case and put up a fight, the association might find support in the fact that the eighth amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed.” Where pretrial detention without bail is explicitly provided for in the statute, and amounts in some ways to “excessive bail,” they might just have an argument. More interestingly still, the bail provision of the constitution is one of the last provisions that has not been explicitly applied to the states. The Supreme Court has only recently gotten around to addressing the second amendment's application to the states, and the law on determining how to make that decision has been called into question by the conservative wing of the Court.

Meanwhile, in Massachusetts, the race for District Attorney in Suffolk County (ie. Boston) has been heating up. Primaries are coming up for election to a seat left vacant after Dan Conley announced he would not run again. Most of the candidates support eliminating cash bail, and may look to California as test-run. Massachusetts currently has many of the mechanisms in place to effectively eliminate cash bail -- including a system of pretrial detention where a person is found to be too dangerous to release, and the Brangan v. Commonwealth case decided in 2017 holding that where judges set a bail that the defendant cannot post the judge must state his or her reasons for doing so on the record.  Massachusetts also has no bail bondsmen because when bail is set in Massachusetts it is set in a cash amount and a bond amount which is 10x the cash amount, making the use of a bondsman redundant. Interestingly, Suffolk County under Dan Conley has been much more judicious in its use of the dangerousness statute, but that may change under the next administration if expanding its use is necessary to offset the elimination of cash bail as a means of detention. Governor Baker has voiced support for expanding the use of dangerousness hearings and suggested that legislation to that effect would be forthcoming.

A leader in the field for whom I have enormous personal respect is Shannon McAuliffe. Shannon ran the ROCA program, which targets people known to engage in violent conduct, and tries to provide job training and support services to give those people a way out of the life.  I personally watched her work tirelessly. Her leadership in the DA's office would set an example for a progressive and smart approach to prosecution and crime reduction, which is why she has been endorsed by (among many others) Suffolk County Sheriff Steve Tompkins.

Whoever wins the primary will face off against Michael Maloney -- who is running as an independent -- and who is also a good friend of mine, and who currently works (as I do) in criminal defense.

Boston Police Arrest 29 People in Operation Nor'Easter

Operation Nor'Easter  - Gun and Drug Arrests

The Boston Globe is reporting that 29 people -- including one Boston city employee -- have been arrested and are facing state and federal charges relating to a drug and gun trafficking investigation. Three of the individuals involved have already been indicted by a grand jury. The press release, put out by the Suffolk County District Attorney's Office states that the three targets of the investigation are charged with distribution of heroin and distribution of firearms, and are all three charged as habitual offenders.

Under the habitual offender statute, if the defendant has been convicted and sentenced to state prison for not less than three years for two separate offenses in the past, upon a third conviction the defendant cannot be sentenced to less than the maximum state prison sentence provided by law.

Dana Brown and Vito Gray are charged with distribution of a class A substance -- carrying a maximum of 10 years. They allegedly sold 20 and 26 grams of heroin to undercover officers. Since the lowest threshold for trafficking heroin is 18 grams, it is fair to infer that the sales total weight was sold over the course of several transactions (unlike federal court, prosecutions in Massachusetts do not aggregate the weight of all alleged sales). 

According to the press release, Terrell Walker is charged with unlawful sale and possession of a firearm. Unlawful sale of a firearm carries a maximum of 10 years, and unlawful possession carries only 2 years, unless the possession occurred not at home or work (ie. “carrying a firearm”) in which case the maximum is 5 years. Second, third, and fourth offense offenses for carrying a firearm have higher maximum sentences, but the press release does not say that Walker is charged with carrying, nor does it say that the charge is a subsequent offense.

In fact, the press release says that although Walker was previously convicted of murder in the shooting death of a Boston Police Detective, it also says that conviction was overturned on appeal. The press release does say that all three defendants have prior convictions for violent offenses such as robbery, which could possibly subject them to higher maximum sentences and mandatory minimums under the Armed Career Criminal (also known as ACC or 10G) statute, but I have never met a judge or prosecutor who believes it is legal to apply the habitual offender enhancement to an armed career criminal sentencing enhancement, so even though they may face sentences as high as 15 to 20 years, the most those charges could add is 5 years to the 10 year minimum they face as habitual offenders charged with distribution of heroin. 

Make no mistake, 10 or 15 years is a lot of time, but these are prosecutions that the state clearly put a lot of time and effort into. They went as far as to invoke the habitual offender statute. It is remarkable, therefore, that it looks like the real exposure for these defendants is not higher. Meanwhile, the Commonwealth has yet to prove their guilt in court, they are presumed innocent.

The Supreme Court Issues New Ruling on Parked Cars and Warrants

There are some important rules that motor vehicle operators must remember regarding the powers that law enforcement has when it comes to searching motor vehicles.

For many years, it has been established law that law enforcement must have a legitimate reason to stop a driver. In June 2018, the United States Supreme Court ruled that protections offered by the Constitution require law enforcement to obtain a search warrant before searching a parked car. This ruling stands in significant contrast to other laws that do not require a permit for law enforcement to closely examine motor vehicles that are parked on public roads.

No matter the exact situation regarding a person’s motor vehicle, it is a wise idea to contact an experienced criminal defense attorney if you have any questions regarding how Massachusetts law applies to protections created by the Fourth Amendment.

The Automobile Exception to the Fourth Amendment

The “automobile exception” to the Fourth Amendment states that in any situation in which law enforcement has probable cause to think that a motor vehicle contains evidence of a crime or any tools used to commit a crime, law enforcement is able to search a vehicle as well as any containers withi it that might contain the items in question.

It is also critical to remember that if the search of an automobile is valid, law enforcement is permitted to tow a vehicle and search it at a later date.

Due to these laws, law enforcement in Massachusetts has been able to justify motor vehicle searches in a number of situations.

The Details of This Case

The case in question arose from a man in Virginia who was convicted of stealing a motorcycle. After conducting a search for an orange and black motorcycle, law enforcement found a similarly-colored motorcycle on Facebook and tracked the vehicle to a private residence. Law enforcement entered the residence in question, lifted the tarp covering the vehicle, and took several photographs.

After the man was arrested, he claimed that the search in question was unconstitutional due to the automobile exception of the Fourth Amendment. The man later appealed his case all the way to the United States Supreme Court.

The Rationale Behind the Court’s Decision

In support of the court’s decision, the Supreme Court cited the long-established rule that law enforcement intrudes on the rights of individuals by entering private property and examining a house without looking for evidence.

The rights that are violated in these situations are those granted by the Fourth Amendment, which protects against unreasonable searches and seizures and extends to situations involving a person’s home and private property.

In reaching its decision, the Supreme Court also cited a 2013 ruling that held that law enforcement is prohibited from bringing a drug-sniffing canine onto a front porch without first obtaining a search warrant.

Speak with an Experienced Criminal Defense Attorney

This case involves one of the more complicated decisions involving the Fourth Amendment. While it is important to remember that protections offered by the Constitution now extend to parked motor vehicles, it is still critical to maintain a level of caution regarding how privacy laws apply to automobiles.

If you are charged with any type of criminal offense, you should not hesitate to speak with an experienced criminal defense attorney. Contact attorney Edward Molari today to schedule a free case evaluation.

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