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Victim-of-Auto-Insurance-Fraud-300x240.jpgCelina Garcia is an insurance claims adjuster. She works for Liberty Mutual. The thirty-four you old Lawrence, Massachusetts resident is now in some trouble. The Lawrence Eagle Tribune reports that about six months ago Garcia could not get her car started. She had it towed to a shot in New Hampshire and was told that the car had a bad timing belt. Garcia left the car with the mechanic. About two months later the mechanic called Garcia to see what she wanted to do with the car. She told him that she reported the car stolen. The mechanic then called the police. In all, Garcia collected over seven thousand dollars from the insurance company as a result of her false reports. She has been charged with various crimes in the Lawrence District Court; specifically, Larceny Over $250, Insurance Fraud and Filing a False Police Report.

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Massachusetts Fraud Defense Law Firm

Larceny Over $250 in Massachusetts is a felony. The crime is set out in Massachusetts General Laws Chapter 266 Section 30. A conviction for this offense carries a possible five year state prison sentence. More likely than not Garcia has no criminal record so it would not surprise me to see this case remain in the district court. There, the maximum sentence a judge can impose is one year in the county jail. I would imagine that Garcia will receive no more than a continuance without a finding with an order of restitution to the insurance company.

The crime of Larceny in Massachusetts is defined as the unlawful taking and carrying away of personal property of another with specific intent to deprive person of property permanently. The property in this case is that of the insurance company. If the reported facts are true and comprehensive then Garcia’s defenses are limited. However, here is what catches my eyes. Garcia is in the insurance business. She is a claims adjuster. She knows how insurance claims are investigated and defended. She, more than anybody would know the pitfalls and dangers of engaging in this type of criminal activity. She would also be cognizant of just how easy it is to get caught committing this type of crime, particularly if it was done as suggested by this article. Moreover, why would she admit to the mechanic that she was filing a false insurance claim. It makes no sense. There is no indication that Garcia knew this man. So why would she trust him with her confession to having committed a felony? How would this benefit her? What would she have to gain by telling this to someone? As is the case in any criminal matter the facts need to be examined more closely, something I am sure that Garcia’s Massachusetts Criminal Lawyer will do.

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Shortly after 7:00 a.m. Sunday morning Framingham, Massachusetts police received a call for a disturbance on Dinsmore Avenue. When they arrived they heard a woman screaming. The officers entered the home and found Marvin Alvarenga holding his ex-wife and her daughter against a wall. The ex-wife was bloodied and bruised. The daughter complained about having suffered some injuries as well. The ex-wife told police that she met with Alvarenga the previous night for dinner. The purpose of the meeting was to discuss the woman having a Restraining Order against Alvarenga dismissed. Apparently the meeting did not go well. The woman told the police that Alvarenga then forced her to drive him to her Framingham home where he beat her. He did however permit her to contact her daughter who went to the home. Once she entered the property it is alleged that the daughter was not allowed to leave and was threatened with a beer bottle. Alvarenga is being charged with Assault by Means of a Dangerous Weapon, Assault and Battery, Kidnapping, Intimidation of a Witness and Violating a Restraining Order. Alvarenga has an open Assault and Battery case on which bail was revoked. Through his lawyer Alvarenga denied all allegations. The case is pending in the Framingham District Court.

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Framingham Massachusetts Criminal Lawyer, Kidnapping, Violation of 209A Orders

Typically in cases involving Domestic Violence witness credibility becomes a critical issue. This is because the defenses to these cases implicate a history between the parties that is usually admissible as evidence at trial. Massachusetts Criminal Lawyers will tell you that very often the initiator of a Restraining Order makes his or her application to gain an advantage or control over someone with whom they are involved. Take this case for instance. Why would the “victim” want to meet with Alvarenga for dinner to discuss vacating the existing Restraining Order? Keep in mind that the issuance of the order contemplates a judge finding a substantial likelihood of an immediate danger of abuse. This is based on an affidavit and/or the testimony of the complainant who admits to being in fear of this person. It hardly makes sense for someone truly feeling this way to drive from Framingham to Boston to discuss terminating the order over dinner. This will hurt the woman’s credibility. Alvarenga should have known that the dinner meeting constitutes a violation of the order. I have seen many cases where the complainant contacts the defendant, usually by text, email or voicemail message. This action is naturally designed to elicit a response. The response constitutes a Violation of the 209A Order that is virtually indefensible. Most troubling about this is that this action is deliberate on the part of the “victim”. I have represented countless people who have responded to the unsolicited contact and found that to be the basis for the issuance of a complaint. Once again, the “victims” can use this tactic to gain a personal advantage over the accused or as a form of retaliation for some non-criminal issue with which they took issue.

While the ex-wife’s credibility might be questioned at least as to some of the counts, Alvarenga’s problems are going to come from the police officers testimonies. They heard the screams, witnessed some of the incident and saw the ex-wife in a bloodied condition. While the Kidnapping counts might easily be challenged the Assault Charges are going to be more difficult to beat.

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Credit-Card-Fraud-1753.jpgJames Hughes is fifty one years old. He lives in Dracut, Massachusetts. According to a report in the Lawrence Eagle Tribune Hughes is now facing charges of Larceny From a Person Over Sixty Five Years Old, and Credit Card Fraud. The case in pending in the Peabody District Court. The article states that Hughes lived in a condominium complex with his mother. The victim lives in the same complex. She trusted Hughes with her credit cards to do errands for her. It is alleged that he used the cards to finance gambling trips and for personal purchases. The credit card charges exceed forty eight thousand dollars. Some of the charges to the credit cards were incurred while the woman was in a nursing home.

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Essex County Fraud Defense Attorney

The article goes on to say that Hughes lawyer will be arguing a Motion to Dismiss the charges, perhaps sometime today. Motions to dismiss are practical tools a Massachusetts Criminal Lawyer will often use to get rid of a case that never should have been filed in the first place. These motions have become particularly popular in the last ten years, since the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. DiBennadetto, 436 Mass. 310 (2002). In DiBennadetto, the Court held that a motion to dismiss, is the appropriate and only way to challenge a finding of probable cause. Clerks are bound by the tenets of Massachusetts General Laws Chapter 218, Sections 35 and 35A establishing the requirement of probable cause before a criminal complaint can be issued. DiBennadetto says that this can be challenged. After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate. These motions can also be filed on the basis that there was a violation of the integrity of the Clerk’s Hearing proceeding or for any other reason deemed necessary to challenge the validity of the complaint. These motions work, particularly when argued before a judge who knows and applies the law.

In the event the motion fails, Hughes will have to defend some very serious charges. Larceny From the Person, Massachusetts General Laws Chapter 266 Section 25 carries a potential five year state prison sentence regardless of the victim’s age. It is a felony. Credit Card Fraud is a violation of Massachusetts General Laws Chapter 266 Section 37C. This too carries a possible five year state prison sentence. What separates this case from routine larceny cases is the age of the alleged victim and the amount of money taken from her. Over forty eight thousand dollars is the alleged amount of the theft. This is considered very high by itself. It might be considered exorbitant if the amount represents a substantial of the woman’s life savings. District attorneys fight hard to protect the elderly and judges tend to punish those who victimize the elderly more severely than they might in instances where the victim is younger.

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gavel.jpgThe Lawrence Eagle Tribune reports that Amy Moolic, a Chelmsford, Massachusetts resident has been charged with a Felony following an incident on Riverside Drive in Methuen. This occurred on Thursday. The night before Moolic was involved in car accident. Following that incident she stayed with family members. Her nephew, the victim, woke her up to check on her. She became angry and tried to strangle him. She then chase him and threw a glass vase at him. She missed. Subsequently she took hold of a couple of kitchen knives. She chased her nephew again. He locked himself in a bedroom and called the police. The police arrived and were able to subdue her however not before she bit one of the officers. At least initially this case will be prosecuted in the Lawrence District Court. The newspaper did not indicate what the charges will be however I imagine that Moolic will face charges of Assault and Battery, Assault and Battery on a Police Officer, Assault by Means of a Dangerous Weapon and Assault With the Intent to Murder.

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Massachusetts Criminal Lawyer – – Crimes of Violence, Assault and Battery, Dangerous Weapon, Intent to Murder

Incidents like this one occur more frequently than you might think. Each week you can read about some crazy family incident or event that ends up with criminal charges filed in court. This one however, at least in the context of the article is somewhat unique. There does not appear to be any particular catalyst triggering Moolic’s actions. Her nephew was checking on her, presumably to see if she was okay following a car accident from the previous day. For no apparent reason she took exception to this and became violent. When the police arrived she shouted: “suicide by cop, kill me and put me out of my misery.” As a Massachusetts Criminal Lawyer I wonder whether there was some sort of underlying mental illness that caused this behavior. Or perhaps the Moolic suffered some sort of head injury from the accident the previous day. If there was a pre-existing mental health condition this is something that Moolic’s lawyer will investigate and possibly use in defense of the case. Prosecutors and judges are sympathetic towards people who suffer from mental illness particularly where the problem is one that is being address by professionals, can be controlled and the defendant is serious about getting the help needed. Cases like this one are also easier to work out if the victims, particularly victims who are family members, are in agreement with a favorable disposition, perhaps one that will not result in the accused having a criminal record. The article certainly makes this incident seem like aberrational behavior.

Keep in mind a few other things. If Moolic is charged as I expect she will be facing several felony counts. Assault by Means of a Dangerous Weapon carries up to ten years in state prison. Assault with the Intent to Murder is also a felony that carries a ten year state prison sentence. Both of these charges however can be prosecuted in the district court which is where I imagine these cases will remain.

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The Lawrence Eagle Tribune reports that a Police Detective pulled over a car because he saw one of the passengers holding a bag “containing a green leafy substance.” According to the Tribune, based on that observation the Lawrence Massachusetts Police Detective pulled the car, that was filled with what the thought was “marijuana smoke” over. All four occupants were charged with possession of marijuana with intent to distribute and conspiracy to violate the drug laws. The driver faces additional charges including operating after his license was suspended.

Although all of the facts of this case are not known at this time, it appears that based on these facts an experienced Haverhill defense attorney should file a motion to suppress evidence. As most in the criminal law arena are aware, Massachusetts recently decriminalized the possession of marijuana that is under one ounce.

The state and federal constitution provide that individuals have a reasonable expectation of privacy on their person and in their home. This expectation of privacy often extends to drivers and passengers in a motor vehicle. What that means, is that police officers must have probable cause to believe that a crime has been committed or is going to be committed before conducting a search. Even a threshold inquiry, which is considered less intrusive, must be supported by “reasonable suspicion” of criminal activity.

In this case, it appears that an argument can be made that even if the detective saw smoke, that would not be a reason to pull the car over. How would the detective know that the smoke was “marijuana” smoke as opposed to cigar or cigarette smoke? Furthermore, the possession of marijuana under an ounce is no longer a crime but treated like a civil infraction Another are to peruse would be to investigate how the detective was able to see the alleged “bag of marijuana.” It seems that the likelihood of being able to see a clear plastic bag of anything in a moving vehicle, never mind being able to identify the substance is slim to none. Based on the facts available at this time, ti does not appear that the driver was committing any traffic violations. Accordingly, a strong argument can be made that the detective had no legitimate reason to pull the car over. Along the same lines, even if the detective smelled a “strong aroma of marijuana” upon opening the door, that does not necessarily support ordering the occupants out of the car and conducting a search. There is no indication that the driver was impaired, in fact it appears that he was not charged with operating under the influence of marijuana.

In the event that a motion to suppress evidence was filed and allowed, it is likely that would be the end of the case. However, even if the case went to trial these defendants have viable defenses. In order for the Commonwealth to secure a guilty on the charge of possession of marijuana with intent to distribute, they must prove beyond a reasonable doubt that a defendant possessed the substance with the intent to distribute. To prove “possession” the government must prove that the defendant had knowledge of the substance and the ability to control it. Thus, an argument can be made that the individuals that were not “holding” the bag did not have control over the substance. Additionally, in order to prove “intent to distribute” there must be some evidence that the defendants were going to share, sell or otherwise distribute the produce. In most cases large amounts of cash, scales, baggies, customer lists and cell phones are usually confiscated at the time of arrest to support this charge. It does not appear that there was any such evidence in this case.

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Last night a woman reported seeing a man exposing himself and making obscene
gestures towards her as she drove by him in her car. Shortly before 10:30 Lowell police arrested the man. He was identified by the woman shortly after the incident. The defendant, Michael Sullivan was arrested at the same location just about one week ago after police received information that Sullivan had been exposing himself. When the police arrived to investigate the first incident Sullivan’s pants were down. That arrest resulted in an Indecent Exposure charge, a misdemeanor in Massachusetts. The new charges are Open and Gross Lewdness, a felony in Massachusetts. The cases are being prosecuted in the Lowell District Court.

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Lowell Massachusetts Sex Offense Defense Attorney

Open and Gross Lewdness in Massachusetts is a felony. The crime is set out in Massachusetts General Laws Chapter 272 Section 16 which states: “A man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.” The proscribed conduct if conducted secretly does not amount to a violation of this statute. The crime is very close to the other crime Sullivan is charged with, Indecent Exposure however the consequences of a conviction for each differ significantly. Open and Gross is distinguished by the element of producing alarm or shock, an element necessary to sustain a conviction. The district attorney likely views Sullivan’s obscene gestures as satisfying this element of the felony offense. Indecent Exposure is a crime under Massachusetts General Laws Chapter 272 Section 53. The maximum sentence that can be imposed for a conviction of that crime is six months in jail, making the crime a misdemeanor.

Massachusetts case law specifically states that masturbating in public constitutes a violation of the Open and Gross law. Also, there is no requirement that the body part be genitalia. Exposing one’s buttocks if coupled with the other elements can result in a felony conviction. Walking in on a person performing oral sex on another person in a public place is in certain circumstances Open and Gross Lewdness. Case law has made clear that urinating in public can result in a valid conviction for this offense. The factual underpinnings of these are important details for your Massachusetts Criminal Lawyer. If properly represented these cases can be pled down to a lesser offense, dismissed or tried to an acquittal. The line between the felony charge and the misdemeanor charge is thin, thus requiring proper, experience representation. Even getting the felony continued without a finding might not be the best result in some contexts. Consult with a Sex Crimes Lawyer in Massachusetts any time you are facing charges like Mr. Sullivan.

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jail_break_rush.jpgJose Morales, a Salem, Massachusetts resident was serving a two and one half year sentence in the Essex County Correctional Alternative Center in Lawrence. Last night he left the facility. He had served about three months of the sentence, one that would have resulted in his release in about ten months. His sentence was for Defrauding an Innkeeper, Disorderly Person and Assault and Battery on a Public Servant.

The Correctional Alternative Center is also known as the farm. It is located in Lawrence, Massachusetts on the Merrimack River. The grounds are fairly large. Over one half of the property is used to grow produce that feeds the inmates at the various Essex County Correctional Jails and House of Correction. The facility typically houses non-violent offenders suffering from substance abuse problems. There are no sex offenders or violent criminals housed at that location. The facility offers all types of substance treatment programs and work release programs. The jail houses about three hundred inmates. More than a third of these people perform community service.

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Lawrence Massachusetts Criminal Lawyer

Escape in Massachusetts is a violation of Massachusetts General Laws Chapter 268 Section 16. The crime is a felony and is punishable by up to ten years in state prison. It is not often that people in Morales’ position escape or attempt to escape. There are many applications to this statute. It applies to people being detained while awaiting trial. It applies to people on work furloughs. It does not apply to escapes from police station holding cells. It is also critical that the custody of the defendant is lawful custody at the time of the escape for the crime to survive sufficiency challenges. The invalidity of confinement however is not a defense to this crime. For instance, if the defendant was entitled to parole but did not get paroled, his escape cannot be justified.

Serving sentences in minimum security facilities in Massachusetts is often considered a privilege among those in the criminal community. There are no bars or cells in the conventional sense. You can see the inmates moving about the grounds when you drive by. There are no fences isolating the facility. The stay at these institutions is usually short. There is every incentive to remain there to serve out the sentence.

Most likely Morales will get caught. When he does he will have to defend against felony charges. One thing is pretty certain. If he gets convicted of escape, his next stay will be at a facility that has bars, cells, limited movement and few privileges. His sentence will also probably exceed, perhaps substantially, the sentence he was serving at the Farm. Furthermore, he will still have to finish serving the sentence he was serving at the time of his escape. This escape just made matters significantly worse for him.

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thousand_dollars.jpgJust last week four Massachusetts residents attending school at Bridgewater State College were arrested for their involvement in serious drug activities. The four, Tyler Trainor of Saugus, Bradley Head from Worcester County, Eric Eldred of Methuen and Patrick McGirr were living in an off-campus house. Local drug enforcement officers had been watching the place for over one month. Once they believed they had enough information officers applied for and were granted a Search Warrant. On Thursday they searched the home located at 11 Perkins Street, in Bridgewater. During the search they found Marijuana, Cocaine, Percocets and over seven thousand in cash. McGirr has been labeled the brains behind the operation and bail for him was set in the amount of twenty five thousand dollars cash. He is being charged with Trafficking Cocaine, or Trafficking Marijuana or both. Right now the case in pending in the Brockton District Court however this case will most likely be prosecuted in the Plymouth County Superior Court.

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Brockton Massachusetts Drug Crimes Lawyer

Defending college students accused of committing serious Massachusetts Drug Crimes is often the most emotionally challenging task Massachusetts Drug Crimes Lawyers take on. Parents proudly drop their children off at college expecting them to make friends, participate in sports, make life-long professional connections and study. It is always a shock to parents when they hear that their son or daughter has been arrested for a serious drug offense such as Trafficking Cocaine or Trafficking Marijuana at the same time that he or she was attending college. Parents never see this coming and they assume that this, being a first offense will result in some sort of reprimand, possibly expulsion from school. What they can never understand is that their child is at risk for a jail or state prison sentence, one that will perhaps result in fifteen years of incarceration.

So what usually happens in cases like this one? That depends on the level of involvement for each individual defendant. It also depends on the viability of defenses available to each defendant. For instance, in this case the district attorney made clear his belief that one of the defendants was the ring leader. If he does not have decent defenses to the charges and he tries to plea bargain, the deal he will be offered by the prosecutor will probably not be as favorable as it might be to one of the other defendants whose involvement was significantly less. You have to keep in mind that judges lack the power to reduce charges involving minimum sentences. Only the district attorney can reduce the charges. In this situation there is great value in hiring an Experienced Massachusetts Drug Crimes Lawyer, who, when all else fails can possibly negotiate a much lesser sentence than the one the accused is facing. In many cases like this the defendants with lesser involvement or with stronger defenses will have a better chance of walking away without jail time.

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One of the most valuable tools that an aggressive and successful defense attorney has in his or her arsenal is the motion to suppress evidence. Whether a case is in the Lowell District Court, Peabody District Court or Lawrence District Court the viability of filing a motion to suppress evidence should always be considered when a client is charged with an offense in which the Commonwealth must prove possession to secure a conviction against a defendant. Boston area criminal Defense Our Attorney has successfully litigated motions to suppress evidence in the Massachusetts Superior and District Courts. Whenever a client is charged with possession of a controlled substance, possession of a controlled substance with intent to distribute, trafficking in a controlled substance, possession of a firearm, possession of ammunition or possession of a dangerous weapon a Massachusetts criminal defense attorney should consider filing a motion to suppress evidence. If a motion to suppress evidence is successful that is often the end of the case.

STANDING

In order to be in a position to file a motion to suppress a defendant must have standing and an expectation of privacy. Standing generally means that a person is legally in a position to file such a motion. Whenever a defendant is charged with an offense in which the Commonwealth must prove possession to convict a defendant, such as unlawful possession of a firearm, G.L. c. 269 § 10 9h), he has automatic standing to contest the reasonableness of the search under Article Fourteen of the Massachusetts Declaration of Rights. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990) [adopting doctrine of “automatic standing” where defendant is charged with a possessory offense and seeks to exclude evidence under the Massachusetts Declaration of Rights]. Whether an individual has a reasonable expectation of privacy is usually a separate–but related issue. In Commonwealth v. Kirschner, 67 Mass. App. Ct. 836 (2006) the Appeals court recognized that a defendant charged with a possessory offense is relieved of the burden of showing an expectation of privacy. See, Commonwealth v. Frazier, 410 Mass. 235 (1991).

STANDING/EXPECTATION OF PRIVACY

Under the Fourth Amendment, the question of whether the defendant has standing to challenge a search or seizure is merged with the determination of whether the defendant had a reasonable expectation of privacy in the place searched, and a defendant has no standing if he has no reasonable expectation of privacy. Rakas v. Illinoi, 439 U.S. 128, 138-39 (1978); Commonwealth v. Mubdi, 456 Mass. 385, 391 (2010). In contrast, under Article Fourteen, the question of standing remains separate from the question of reasonable expectation of privacy. Mubdi, 456 Mass. at 391; Commonwealth v. Williams, 435 Mass. 203, 207-08 (2009); Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3 (1991). “This separation matters most in cases where a defendant is charged with a possessory offense, because Article Fourteen gives a defendant automatic standing to challenge a search of a private place, such as an automobile or home, in which the object he is alleged to possess is found.” Mubdi, 456 Mass. at 392. Where a defendant has automatic standing, he does not need to show that he has a reasonable expectation of privacy in the place searched. Id. “The practical consequence of automatic standing is that, if a defendant is charged with illegally possessing drugs or firearms that were seized during a search, the defendant may succeed in suppressing such evidence where the search was unconstitutional, regardless of whether he has a subjective or objectively reasonable expectation of privacy in the place where the drugs or firearms were found.” Id. at 392-93.

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castle.jpgMassachusetts General Laws Chapter 278 §8A provides a defense to someone who is being prosecuted for Murder in Massachusetts. The law states that it is a recognized defense for anyone who is the occupant of a dwelling and is charged with killing someone who was not lawfully in the home so long as he acted with the reasonable belief that this person was about to inflict death or great bodily injury on him or on someone else who was lawfully in the home. This law does not require a duty to retreat. Even though this is a defense to the most serious crime in Massachusetts there are some extreme limitations to its use. The Castle Law takes root in English Common Law where a belief was held that “one’s home is one’s castle”. Some states apply the doctrine to places outside of the dwelling. For instance one’s car or workplace are in some states considered sacred ground making available the defense.

In Massachusetts the Castle Law does not apply to a killing committed in the defendant’s driveway. This law does not apply to stairs outside of the dwelling. Nor does the law apply to porches attached to the home. Even where porches or stair provide direct access to the home the rule has been held not to apply. In other words, a porch is not an extension of a living room even if that porch is the point of entry to the living room. The Castle Law does not apply to the killing of an invited guest even where the invited guest “launches a life-threatening assault on the defendant”. Massachusetts case law makes clear that the purpose of this law is to permit the use of deadly force against intruders, not invitees. There are instances where the status of the “guest” can change and make his or her presence unlawful. For instance, if the person is ordered to leave and refuses to do so his status becomes that of a trespasser and at that point he is not lawfully in the dwelling.

The decision of whether to instruct the jury with the Castle Law Defense in Massachusetts lies with the judge. The judge is to view the evidence relative to this issue in the light most favorable to the defendant. A failure on the part of the defendant’s criminal defense attorney to ask for an instruction on this defense might result in a reversal of any conviction if the facts of the case warranted such an instruction. Once again this shows just why when hiring a lawyer you need to find someone with experience. For any criminal case, particularly the more serious criminal cases your lawyer should be someone who focuses exclusively on criminal defense. You do not want to take any chances with someone who merely dabbles in criminal defense work. You want a lawyer who is in court every day, defending the accused and working with and against the prosecutors.

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