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Caridad Hernandez is a 51 year old grandmother who lives in Lawrence, Massachusetts.  On September 5, 2008, she was arrested for trafficking cocaine over 28 grams, trafficking cocaine within 1,000 feet of a school zone and possession with intent to distribute prescription drugs.  Charges will be initially filed in the Lawrence District Court.  After the case is indicted the case will be handled in the Essex County Superior Court.  Lawrence police stated that the drugs were found in sandwich bags, a candy tin and pill bottles.  Officers also located drug packaging paraphernalia.  According to an article in the Lawrence Eagle Tribune police had made several controlled buys from the defendant.  Afterwards they obtained a search warrant.  It was during the execution of the search warrant that the majority of the drugs were located.  Read Article, Lawrence Eagle Tribune, September 6, 2008.

Search warrants in Massachusetts are governed by G.L. c. 276 et seq.  Search warrants can be issued in Massachusetts upon a showing of probable cause.  Police officers seeking to conduct a search are required to file an affidavit with a judge or clerk magistrate.  The affidavit must contain facts and information upon which the officer relies that are sufficient to establish probable cause for the warrant to issue.  Criminal defense lawyers often challenge the issuance of the warrant through motions to suppress.  Grounds for the motion to suppress vary from case to case.  Sometimes criminal defense lawyers challenge the sufficiency of the facts in the affidavit and ask the judge to suppress the search.  Other times criminal defense lawyers challenge the integrity of the officer’s representations by asking the judge to look beyond the affidavit by using collateral evidence to show the judge that these facts were untrue. 

In this case Caridad Hernandez is looking at a minimum mandatory state prison sentence of 7 years.  The trafficking over 28 grams carries a mandatory 5 and the school zone carries a minimum mandatory 2 that must be served from and after the trafficking sentence is served.  It is likely that during the course of her defense her attorneys will try to locate anyone who was present during the controlled buys to ascertain the accuracy of the police officer’s account of these transactions.  I also imagine that a motion to suppress will be filed challenging the constitutionality of the search. 

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Last fall Christopher Al-Nabulsi was a senior at Salem High School.  On December 6, 2007 he sold a $15 bag of marijuana to another classmate at school.  The other student was caught and identified Al-Nabulsi as the supplier.  School officials searched his backpack and found 3 additional packets of marijuana.  Al-Nabulsi was expelled from school and charged with distribution of marijuana in a school zone.  At that time he was the captain of the football and lacrosse teams.  On September 4, 2008 he was convicted in the Salem District Court for possession with the intent to distribute marijuana.  Through a plea bargain he received a 2 1/2 year suspended sentence with an additional 2 years probation.  In exchange for his guilty plea the prosecution agreed to drop the school zone charge.  Al-Nabulsi has not graduated from high school as neighboring towns will not accept his enrollment due to these charges.  The story was reported in the Salem News.  Read full article, September 5, 2008.

Under the Massachusetts school zone statute the defendant in this case was facing a minimum mandatory 2 years in jail.  The prosecution exercised great discretion and elected to drop the school zone charge provided that the defendant plead guilty to the possession with intent to distribute marijuana charge.  Massachusetts law makes this crime a felony. 

As noted by the defense attorney in his interview with the Salem News, this case calls into question the fairness of certain aspects of the Massachusetts drug laws.  Al-Nabulsi was just 17 at the time that he committed this crime.  The person to whom he sold was 15 years old and also a student at the same high school.  The quantity was small.  The substance, while illegal is perhaps the most benign controlled substances.  Al-Nabulsi now has a felony conviction and no high school degree.  Prior to this incident his life appeared to by quite promising.  Felony convictions however cannot be sealed for at least 15 years in Massachusetts. 

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On Wednesday August 27, 2008 a drug deal went bad on Quincy Terrace in Lynn, Massachusetts and resulted in the murder of a 24 year old man.  On August 28, 2008 a Lynn man was arraigned in the Lynn District Court on charges of murder.  Court papers stated that the victim and two black males and a female went to Quincy Terrace where one of the group had been ripped off during a marijuana distribution transaction.  An argument followed during which the defendant brandished a gun and scared the group away.  The victim retrieved a firearm from his car and returned to the scene.  A gun battle followed.  When the police arrived they observed the defendant holding the clothes that witnesses saw him at the time of the shooting.  They also saw the defendant lying dead on the ground with a .40 caliber handgun lying close by.  A .38 caliber handgun was found at the rear of the Quincy Terrace apartment. 

Arguing for bail the defense attorney told the judge that the victim fired the first shot and the defendant acted in self-defense.  The judge in the Lynn District Court held the defendant without bail.  Witnesses said that the defendant fired three shots.  The defendant has been identified as Walter Clare.  Read full article, Lynn Item Online, September 3, 2008. 

Self-Defense in Massachusetts 

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A Newburyport District Court judge found sufficient facts to convict Methuen High School Assistant Principal Donald Gibson of a second offense OUI last week.  The Lawrence Eagle Tribune reported that on April 25, 2008 Gibson was stopped by the Amesbury Police for a marked lanes violation after having left the Winner’s Circle in Salisbury, Massachusetts.  Gibson admitted to drinking 5 beers and was placed under arrest.  He was charged with OUI second offense which carries a penalty of 30 day mandatory in the Essex County House of Correction.  Read Article, Lawrence Eagle Tribune August 29, 2008.  However since Gibson’s prior conviction was more than 10 years old the judge had discretion to treat this as a first offense.  See Massachusetts Drunk Driving Laws G.L. c. 90 sec. 24D.  The judge suspended Gibson’s license for 90 days, twice the minimum mandatory, placed him on probation for 2 years and required him to attend the alcohol awareness program.  Gibson will be entitled to apply for a hardship license immediately.  The case was continued without a finding, which essentially provides that if Gibson successfully completes his probation the case will be dismissed.  There will always be a court record to alert judges and prosecutors that Gibson was given this break in 2008.  With the exception of the 90 day license suspension this defendant was given the equivalent of a first offender’s disposition under G.L. 90 sec. 24D.  Gibson’s first OUI offense was in 1981 out of the Lowell District Court.  The result of Gibson’s case was typical of how second offense drunk driving cases (with the prior offense being over 10 years old) are resolved in Massachusetts. 

People generally believe that if they had 5 beers as did Gibson they have no choice but to plead guilty.  This however is not always the most prudent way to resolve the case.  Our office utilizes toxicologists to evaluate the quantity of alcohol our clients drank over the period of time the beverages were consumed.  This, coupled with the person’s weight and food consumption yields a fairly accurate estimate as to what the person’s blood alcohol was at the time of operation.  You can drink and then drive.  You cannot drive under the influence of alcohol.  The presumptive level of impairment in Massachusetts is .08 blood alcohol.  Five beers over five hours will not result in a .08 for most people. 

These days people charged with OUI in Massachusetts usually want to resolve their case quickly particularly if this is a first offense.  This is due to recent changes in the Massachusetts Drunk Driving laws.  The most recent statute is also known as Melanie’s law.  It rewards first time offenders who plead guilty by restoring their operating privileges almost immediately with certain restrictions.  People opt for pleading guilty so that they can resume driving and continue on in life with minimal inconveniences.  While seductive this is not always the most prudent way to resolve your case.  Our office takes the time to analyze your case and advise you of all alternatives so that you will consider more than just getting your license back as soon as possible.  Call us now with any questions about your drunk driving case in Massachusetts. 

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An Andover man who is a former dean of the Business School at Merrimack College was arrested and charged with possession and distribution of child pornography.  The case is pending in the Lawrence District Court.  The defendant has been identified as Edward Popper, 63.  According to an article in the Andover Townsman an undercover Pennsylvania police officer had online meetings with Popper and learned that Popper possessed a large amount of child pornographic photographs.  The office notified the Essex County District Attorney’s office which subsequently learned that Popper was the person communicating with the undercover.  Popper was arrested, arraigned and released on $10,000 bail.  During the arrest police seized Popper’s computers.  As a condition of his bail he is ordered to keep off of the internet and any technological device through which he can have access to children.  A pre-trial conference has been scheduled for September 16, 2008. 

In Massachusetts it is illegal to purchase or possess child porn.  The statute, G.L. c. 272 sec. 29C prohibits 1) the possession or purchase of any picture, film, negative, book or compute image of a person he knows to be under the age of 18 or “reasonable should know” is under the age of 18; 2) that shows that individual having sex with a person or animal, masturbating, being lewdly touched, being bound, abused or portrayed in any lewd pose.  A conviction for this offense carries a five year state prison sentence.  The case cannot be continued without a finding. 

Distribution of child pornography in Massachusetts is made criminal by G.L. c. 272 sec. 29B. That statute prohibits the dissemination of child porn or the possession with the intent to disseminate child pornography. A conviction under this statute requires the defendant to serve 10 years minimum in state prison.  Consent is not a defense under this statute. 

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A New Hampshire man charged with aggravated rape faces potential additional charges now that other women are coming forward with similar stories.  The Newburyport Daily News reported that Thomas Currier meets women on an internet dating site, invites them over for dinner and rapes them.  According to the police, Currier gives the women a drink that contains some type of drug that incapacitates them.  The story initially broke on Thursday.  See Full Article, Newburyport Daily News when it was reported that on August 3, 2008 a woman having dinner at Currier’s home experienced an inability to control her body after having a few sips of a drink.  Currier then took her into his bedroom where he proceeded to have sex with her against her will.  The victim was physically unable to stop the attack.  After Currier was finished he threw the woman out of his apartment.  The next day the victim told her family and a rape kit was conducted at the Lawrence General Hospital.  The victim then obtained a restraining order against Currier. 

A state police investigation is ongoing after other women have told of similar stories.  Currier has been violent towards women in the past.  One woman claimed that when she refused to drink the drugged beverage Currier threatened to shoot her.  Investigators believe that other victims might be from Massachusetts and Maine.  The defendant is currently held without bail. 

Rape is punishable by a prison term of up to life in Massachusetts.  It is possible to receive a much light sentence defending on the nature of the allegations.  However, drugging a person for the purpose of committing rape in Massachusetts is also a crime in Massachusetts and it is punishable by a minimum mandatory 10 year state prison sentence.  Defending cases involving drugging and raping victims requires an understanding of the effects of certain drugs on individuals.  Most lawyers need to be educated on how these substances effect a person.  The Law Offices of Stephen Neyman uses renowned toxicologists like Dr. David Benjamin to assist in the preparation of cases involving drugs and sometimes alcohol.  Dr. Benjamin has testified on several of our cases, all with great results.  Dr. Benjamin is a compelling knowledgeable witness who captivates juries and judges.  He regularly provides our office with advice and updated information on toxicological issues.  He is able to distinguish what drugs do in fact incapacitate and what quantities are necessary to achieve the illicit objective.  On any case involving impairment we strongly recommend using a toxicologist to inform the jury of the exact effects of the substances on the human mind and body. 

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The Lowell Sun reported that James Loughran will was sentenced to 3-4 years at the Massachusetts Correction Center (M.C.I.) at Cedar Junction for beating his girlfriend and fracturing her eye socket.  Read Article, Lowell Sun September 1, 2008.  According to the prosecution, on January 24, 2008 police responded to Loughran’s home after receiving a 911 call.  Loughran answered the door but pretended not to speak English.  Eventually the defendant allowed the police to enter the apartment.  They could hear his girlfriend calling for help from another room and when they located her lying on the apartment floor.  She was found bleeding from the mouth and nose.  One of her eyes was swollen shut.  Loughran was eventually charged with assault and battery causing serious injury and intimidation of a witness. 

Crimes like this in Massachusetts are more commonly known as domestic violence.  This occurs when a partner or family member tries to overpower another either physically or emotionally.  Domestic violence can refer to spousal relationships, intimate partners or people living together.  Massachusetts recognizes that both men and women can commit acts of domestic violence.  The violent act can by physical or emotional.  It can take the form of threats or intimidation.  In Massachusetts people committing domestic acts that involve violence or other criminal behavior are often charged with crimes like assault and battery or intimidation of a witness as was Loughran. 

Loughran was charged with aggravated assault and battery.  In Massachusetts this is a felony punishable by up to 5 years in state prison.  The elements that must be proven by the prosecution in this case were that Loughran committed an assault and battery that cause serious bodily injury.  Serious bodily injury has been defined as causing permanent disfigurement, loss of bodily function or limb or a substantial risk of death.  Intimidation of a witness in Massachusetts is punishable by as much as 10 years in state prison.   A prosecution under this statute requires the prosecution to prove beyond a reasonable doubt that you intimidated someone who was a witness in a criminal proceeding or investigation. 

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The Lawrence Eagle Tribune reported Friday that a 27 year old Florida man was sentenced to 10 years in federal prison for convincing a 15 year girl to run away from home to be with him.  The defendant, Daniel Lenz met the girl through an internet video game.  The defense tried to get sentencing continued so that Lenz could get a psychiatric evaluation to aid in his sentencing.  Sentencing documents claimed that Lenz suffers from attention deficit hyperactivity disorder, that he has experienced suicidal tendencies and that he had a troubled relationship with his father.  The judge refused to continue sentencing after prosecutors claimed that Lenz was still having phone sex with the girl while incarcerated.  The prosecution further stated that Lenz poses a danger to the girl and refuses to admit that he committed a crime.  Apparently the girl would visit Lenz in prison and during at least one visit exposed herself by flashing him. 

On August 30, 2007 a federal jury convicted Lenz of 18 U.S.C. sec. 2423.  That statute makes criminal transporting anyone under the age of 18 for the purpose of engaging in sexual conduct.  The statute requires a mandatory 10 year prison sentence.  There is also a maximum of life in prison for a conviction of this offense.  While Lenz received the minimum sentence he will also be on supervised release for life after his release from prison. 

This is an extremely strict statute when compared to some state laws.  For example, in Massachusetts the age for consent is 16.  Arguably the federal statute would make criminal a consensual act that involved for example a 19 year old boy and an 17 year old girl.  Hopefully law enforcement would use discretion in such a case and not choose to prosecute that type of act and limit its use of this statute to those situations that result in the exploitation of young vulnerable victims. 

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Yesterday’s Metrowest Daily News reported that Kevin Porter of Stowe, Massachusetts was indicted by a Middlesex County Grand Jury for the June 24, 2008 murder of Jeffrey Weaver.  Porter was also charged with assault and battery by means of a dangerous weapon and assault and battery.  The Middlesex County District Attorney’s office press release provided little information on this case. 

Porter was initially arraigned in the Framingham District Court on June 25, 2008, one day after the murder.  During the arraignment, Porter’s defense lawyer argued that Porter acted in self-defense.  The prosecution claimed that Porter stabbed Weaver during a fight.  The defense contended that Weaver attacked Porter with a baseball bat, his fists and a chair.  Porter was held on $250,000 cash bail.  Read Article, Metrowest Daily News June 25, 2008.

Murder in Massachusetts is proscribed by G.L. c. 265 sec. 1.  It is punishable by life in prison.  If convicted of first degree murder in Massachusetts there are no sentencing options for judges.  The law states that the convicted person must serve the remainder of his natural life in prison.  Second degree murder in Massachusetts is also punishable by life in prison.  However, if convicted of second degree murder you are eligible for parole in 15 years.  Rarely do people get paroled when first eligible on murder convictions.  The average sentence for second degree murder in Massachusetts is over 22 years in state prison. 
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The Salem News reported that on Tuesday Danvers police arrested two men responsible for breaking and entering cars at the Liberty Tree Mall.  According to police, a witness saw a man breaking into a car at the mall and stealing an unidentified item from inside.  The witness saw the suspect get into a Chevrolet and drive away.  He called the police and told them what he had just seen.  He provided a description of the suspect, the car in which he fled and a license plate number.  A patrolman received the information and spotted the car.  When he attempted to stop the vehicle the driver took off on Route 114 in Danvers and headed towards Middleton.  The suspect made an illegal u-turn at the Route 114/Route 1 intersection.  This caused a collision between that vehicle and a police cruiser. 

The police were finally able to apprehend the driver and his passenger.  The driver was identified as Lewis Diaz of Lawrence, Massachusetts.  The passenger was Christy Lebron, also of Lawrence.  Inside the car police found stolen car stereos and radio equipment. Diaz was charged in the Salem District Court with receiving stolen property, breaking and entering a motor vehicle, malicous destruction to a motor vehicle, driving without a license, providing a false name to police officers, possession of burglarious tools, reckless operation of a motor vehicle, failure to stop for police, resisting arrest, larceny over $250 and using a motor vehicle during the commission of a felony.  Lebron was charged with receiving stolen property, breaking and entering a motor vehicle and malicious destruction to a motor vehicle. 

In this situation it appears that the case against Diaz is much stronger than the case against Lebron.  An eyewitness saw Diaz break into two cars and take items from those cars.  This person will be able to offer direct evidence against Diaz as to the theft crimes.  The motor vehicle offenses were witnessed directly by the pursuing police officers.  The case against Lebron is a bit more tenuous.  Absent any statement admitting responsibility the case against Lebron is circumstantial.  If the stolen items were in her sight or in her possession then her chance of success at trial are reduced.  If the stolen items were concealed it is conceivable that she was not aware of what Diaz was doing. 

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