Published on:

Client was charged in Boston municipal court with two counts of possession with intent to distribute heroin and cocaine.

Narcotic detectives testified that after seeing a person come and go from the clients apartment in a short time frame that they then knock on the client’s door to investigate based on a suspicion drug dealing was taking place. The detectives allege client allowed them to search his apartment. Narcotics officers discover crack floating in the toilet, the bathroom window open and a cell phone sitting on the ledge. They then discover a second suspect outside the apartment who was arrested for possession of drugs. In the clients bedroom they allege that they find a scale baggies and a packet of heroin. Client is charged with possession with intent to distribute heroin and cocaine.

Client testifies at trial and states that he never gave permission for the police to search his apartment and that he had no knowledge of any drugs in his apartment.

After the jury deliberates for approximately one hour they return a verdict of not guilty as to both counts.

Frank Fernandez a criminal defense attorney in Boston handles cases related to drug distribution, possession and Trafficking and Drugs. Drug cases are handled throughout all of Massachusetts and range from district state and federal court.
Please call for a free consultation.

The elements which make up Possession with intent to distribute are:

POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE The defendant is charged with having unlawfully (distributed)
(possessed with the intent to distr ibute) a Class ___ controlled substance,
namely ____ .
Section ___ of chapter 94C of our General Laws provides as follows:
“Any person who knowingly or intentionally . . .
(distributes) (possesses with intent to . . . distribute)
a controlled substance
[categorized by the law] in Class ___ . . .
shall be punished . . . .”
In order to prove the defendant guilty of this offense, the Commonwealth must prove three things beyond a reasonable doubt:
That the substance in question is a Class ___ controlled substance, namely _______ ;
That the defendant (distributed some perceptible amount of that substance to another person or persons) (possessed some perceptible amount of that substance with the intent
to distribute it to another person Instruction 7.800 Page 2 DISTRIBUTION OF A CONTROLLED SUBSTANCE;
That the defendant did so knowingly or intentionally.

Published on:

The federal sentencing commission is recommending the reduction in drug sentences be applied retroactively to 46,000 prisoners currently incarcerated.
The sentencing commission has recently recommended that a two level reduction in the guideline level be applied to all drug offenses.

The reduction is based on attempting to minimize the amount of nonviolent drug offenders who are incarcerated in the federal system. The strict and harsh sentencing in federal drug cases has led to a serious overpopulation of federal prisons which has placed the majority of these prisons at overcapacity and cost the taxpayer vasts amounts of money to attempt to keep up with the ever-increasing prison population.

Nonviolent drug offenders have faced extreme mandatory minimum sentences and very high guideline levels; the sentencing commission is attempting to curb this trend. Eric Holder the Attorney General has also recommended to his offices that they avoid charging extreme mandatory minimums which do not allow judges to exercise discretion against nonviolent drug offenders.

By applying this reduction retroactively approximately 46,000 prisoners may receive up to a 25 month reduction in their sentence. This will alleviate some of the costs and housing of these prisoners and allow the federal prison system to focus on violent offenders and others deserving of long incarcerations. Drug offenders are being viewed as requiring treatment or rehabilitation rather than long incarceration.

It is out of necessity that Congress and the sentencing commission has finally realized that their strict and harsh sentencing of drug offenders has overburdened our prison system. Retroactive application of this guideline reduction still must be passed by Congress which is expected. The reductions will then begin in November with a review of each individual Case to see whether there would be any danger to public safety prior to approving the release.

Congress waged a war on drugs with extreme penalties against drug offenses such as trafficking in drugs and distribution. Trafficking means possession of such a large quantity of drugs that it can be assumed it is not for personal use but rather distribution. When you hear of a trafficking charge it means that the person is being charged with possession with the intent to distribute based on the large amount of drugs in their possession. The war on drugs filled our federal prisons with a large amount of drug traffickers. These drug traffickers have been overpopulating our prsions requiring taxpayers to pay for new prisons and have overcrowded the existing system. Our federal prison system cannot handle the volume and length of inmate sentences it has been supporting. Something needs to change, thus the recommendation to reduce sentences for non-violent drug offenders to relieve some of this pressure.

Frank Fernandez is a Boston criminal lawyer who handles federal drug cases.
Crimes ranging from drug trafficking to possession with intent to distribute both in federal and state court are carefully reviewed and represented. As a Boston criminal lawyer Mr. Fernandez agrees with this new reduction and is happy to offer a free consultation for those facing drug related charges in either federal or state court. For free consultation please call 617-393-0250.

Related article:

Panel supports early release for 46K drug felons

Published on:

The charge of accosting a person of the opposite sex requires an act or statement to be made which is disorderly and offensive to a reasonable person and the appellate courts have interpreted this charge to require the offense to be of a sexual nature.

As a criminal defense lawyer based in Boston serving all of Massachusetts Attorney Frank Fernandez represents clients charged with accosting a person of the opposite sex. For a free consultation please feel free to call 617-393-0250.

The Massachusetts Model Jury Instruction for this charge is below:

Revised May 2014 ANNOYING AND ACCOSTING PERSONS OF THE OPPOSITE SEX ANNOYING AND ACCOSTING PERSONS OF THE OPPOSITE SEX G.L. c. 272, § 53 The defendant is charged with accosting and annoying a person of the opposite sex.
In order to prove the defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt:
First: That the defendant knowingly engaged in an offensive and disorderly act (or acts), or offensive and disorderly language;
Second: That the defendant intended to direct that conduct to [alleged victim] ;
Third: That [alleged victim] was aware of the defendant’s offensive and disorderly conduct;
Fourth: That this conduct was offensive to a reasonable person; and Fifth: That [alleged victim] was a person of the opposite sex.
To prove the first element of the offense, the Commonwealth must prove beyond a reasonable doubt either that the defendant committed a disorderly act (or acts) or that (he) (she) used disorderly language.
To be disorderly, the defendant’s act (or acts) or language must involve one of the following four things without a legitimate reason:Instruction 6.600 Page 2 ANNOYING AND ACCOSTING PERSONS OF THE OPPOSITE SEX Revised May 2014 • it must involve fighting or violent or tumultuous behavior; or • it must create a hazardous condition; or • it must create a physically offensive condition that amounts to an invasion of personal privacy; or • it must be threatening.
A threat may take many forms. It may be an explicit threat, a comment, or an act that would make a reasonable person fearful, not just uncomfortable. The Commonwealth is not required to prove that the defendant intended any threat to be immediately followed by actual violence or the use of physical force. You may consider all of the evidence and any reasonable inferences you choose to draw from the evidence to determine whether any act or language was reasonably viewed as truly threatening.
SUPPLEMENTAL INSTRUCTION If sexually explicit language is involved. Sexually explicit language may be inherently threatening when it is directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress.Page 3 Instruction 6.600 Revised May 2014 ANNOYING AND ACCOSTING PERSONS OF THE OPPOSITE SEX “The term ‘true threat’ has been adopted to help distinguish between words that literally threaten but have an expressive purpose such as political hyperbole, and words that are intended to place the target of the threat in fear, whether the threat is veiled or explicit.” Commonwealth v. Chou, 433 Mass. 229, 236 (2001). See Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 21-22 (2007)
(defendant staring at complainant at swimming pool and singing her a song about “falling in love with a little girl” insufficient to infer that he intended her to fear that harm would befall her).
To prove the second element, the Commonwealth must prove that the conduct was directed at and received by the [alleged victim] .
To prove the third element, the Commonwealth must prove that [alleged victim] knew of the defendant’s offensive and disorderly conduct.
To prove the fourth element of the offense, the Commonwealth must prove beyond a reasonable doubt that the disorderly act(s) or language (was) (were) sexual in nature and would be offensive to a reasonable person in the complainant’s position. An act or language is offensive when it is repugnant or offensive to contemporary standards of decency and causes real displeasure, anger, or resentment. An act or language is offensive when it is contrary to the prevailing sense of what is decent or moral.
Commonwealth v. Cahill, 446 Mass. 778, 781, 783 (2006) (Commonwealth must prove that defendant’s behavior was offensive and disorderly to a reasonable person).
1. Offensive and disorderly are distinct elements. The Commonwealth must prove both that the conduct was offensive and disorderly. Commonwealth v. Lombard, 321 Mass. 294 (1947).
2. A single act sufficient. The statute originally penalized “persons who with offensive and disorderly act or language accost or annoy persons of the opposite sex.” In 1983, the word “act” was changed to “acts.”Instruction 6.600 Page 4 ANNOYING AND ACCOSTING PERSONS OF THE OPPOSITE SEX Revised May 2014 St. 1983, c. 66, § 1. Nevertheless, “the change had no impact on the statute’s meaning,” Commonwealth v. Moran,
80 Mass. App. Ct. 8, 13 (2011), and proof of a single disorderly and offensive act is sufficient.
3. Invasion of privacy need not be extreme. The word “extreme” was deleted from this instruction after the decision in Commonwealth v. Cahill, 446 Mass. 778, 782 (2006) (statute not limited to extreme invasions of personal privacy), rev’g Commonwealth v. Cahill, 64 Mass. App. Ct. 911 (2005).
4. “Physically offensive condition.” If the act was physically offensive, it need not also be threatening,
Cahill, 446 Mass. at 783, and vice versa, Commonwealth v. Chou, 433 Mass. 229, 234 (2001) (distribution of sexually derogatory flyers concerning victim was not physically offensive but was threatening).
“Offensive acts are those that cause ‘displeasure, anger or resentment; esp., repugnant to the prevailing sense of what is decent or moral.'” Cahill, 446 Mass. at 781, quoting Black’s Law Dictionary 1113 (8th ed. 2004). Conduct is physical when it is “‘of or relating to the body.'” Ramirez, 69 Mass. App. Ct. at 17, quoting Merriam-W ebster’s Collegiate Dictionary 935 (11th ed. 2005). Physical contact with a victim’s person is not necessary to render one’s actions physically offensive, however. Cahill, 446 Mass. at 782, citing Commonwealth v. LePore, 40 Mass. App. Ct.
543, 549 (1996) (physically offensive conduct where defendant removed screen from bedroom window of ground floor apartment wherein woman lay sleeping and stood there smoking cigarettes). Cf. Ramirez, 69 Mass. App. Ct. at 16 (no physically offensive conduct where defendant merely stared at complainant at swimming pool and sang her a song about “falling in love with a little girl”).
5. Public or private. The offense may be committed in public or in private. Cahill, 446 Mass. at 782 n.6; Chou, 433 Mass. at 233.
6. “Offensive” conduct must have sexual context. “Offensive conduct under the statute is that which causes ‘displeasure, anger or resentment’ and is ‘repugnant to the prevailing sense of what is decent or moral.’
Commonwealth v. Cahill, 446 Mass. 778, 781 (2006), quoting from Black’s Law Dictionary 1113 (8th ed. 2004). In determining whether conduct is not ‘decent or moral’ within the meaning of the statute, our appellate cases suggest an intent to reach sexually explicit language or acts.” Commonwealth v. Sullivan, 84 Mass. App. Ct. 26, 30 (2013).

Published on:

A Boston police officer who has been on administrative leave since September 2013 was arrested after taking a police cruiser he was not authorized to use. The police cruiser was taken from Dist. C 11 in Dorchester, it appears he drove to Revere and was involved in a domestic incident that the Revere police are now investigating.

Donovan was arrested after the police car was found in Dorchester near his residence on Friday night. He’s been an officer since 2002 and has criminal charges pending related to larceny and now unauthorized use of a motor vehicle charges as well.

Every police department has an internal affairs division which investigate any complaints or suspicions of illegal activity from police in that department. Any allegations of police abuse or criminal activity will be investigated by the internal affairs division. Officers can suffer anything from suspension and firing to other disciplinary type proceedings which are then put in their personnel file.

When an officer testifies in a criminal case his personnel file may be made available and used to cross-examine him if it contains allegations or disciplinary proceedings that go to the officers credibility. That’s why it’s important to know who is testifying and obtain their personnel file if possible to see if there’s anything that can be used to challenge their Credibility during cross examination.

Frank Fernandez is a criminal lawyer in Boston serving all of Massachusetts in criminal litigation. Please feel free to call for free consultation 617-393-0250.

Police Departments are made up of officers and detectives grouped in different departments. Departments can be based on types of crimes or divided in a way that best makes sense. There are gang units, fugitive from justice units, violent crimes tasks force, drug units. Officers can be uniformed or work in plain clothes in an undercover capacity.

The police put their lives on the line everyday and work hard and receive little thanks for their hard work on a day to day basis. Police have a lot of power on the streets and generally deserve and receive the respect of civilians in the community who they protect. But like in any organization or society there are some bad apples who abuse their position of power or trust for their own benefit.

The internal affairs division is there to police the police and make sure any allegations of abuse of power or illegal activity by law enforcement is investigated and dealt with to ensure those bad apples are weeded out.

As a criminal defense attorney in Boston it is important to know those officers who are disciplined or fired for activity which is illegal since this goes directly to their credibility and can be brought out if they testify in cross-examination.

Many cases fall apart because the main officer needed to testify is no longer able to testify whether because they are retired and unavailable or because they were fired for disciplinary reasons and are no longer viewed as credible witnesses who can testify related to their prior criminal arrests. Cases can be won by knowing the status of the essential officers in your case. An experienced criminal defense lawyer will know whether the officers in your case are unable to testify.

Related Article:

Officer on administrative leave arrested after taking police cruiser to Revere

Published on:

A Suffolk County Grand Jury decided not to indict a truck driver, Ricky Prezioso, 41,
who was initially charged with leaving the scene of an accident that caused the death of a bicyclist. The accident occurred in Charlestown on Cambridge Street where a bicyclist traveling in the bike lane was struck by the back of a trash truck at a corner while the truck was taking a turn. The truck driver claims not to have seen the biker and claims that he thought the impact was a pothole that he must have run over.

Although initially charged by the police and the prosecutor in Charlestown district court, for a case to be indicted, which then allows the case to go to Superior Court, it either must be true billed by a grand jury or through a probable cause hearing in court in which a judge finds probable cause to believe that a crime has been committed.

Probable cause hearings are very rare in Massachusetts, the prosecutors do not wish to present testimony and face cross-examination in such an early stage in their case. Most cases that are brought to Superior Court go the route of being indicted by grand jury; the grand jurys across the state are notoriously delayed and take a long time for cases to be processed. A backlog exists because this is the only manner in which the District Attorney’s Office takes cases to Superior Court.

The grand jury hears testimony from witnesses or police officers who summarize testimony, the defendant is not present nor is his attorney, only the prosecutor and the grand jurors are present and hear evidence. The grand jury then just must find probable cause to believe that a crime has been committed, this is a very low standard of proof, they are not deciding the guilt or innocence of a suspect but rather are used as a checks and balances to make sure that the person indicted, being charged, does in fact have some type of connection to the case and that a crime actually took place.

In this instance the grand jury must have found that the driver did not leave the scene of an accident knowing that he caused an accident or injury. Leaving the scene of the crash causing injury or death requires that the suspect charged have knowledge or intent to leave knowing that he has caused injury or death in an accident. At times a suspect may willingly offer his testimony at a grand jury. Many suspects testify in front of a grand jury when there is a defense or another side that the grand jury should hear in making their probable cause decision. Whether Prezioso testified in front of the grand jury is not known.

It is important to have a good defense attorney involved in your case as early as possible so that the decision whether to present testimony to a grand jury can be made.

Frank Fernandez is a criminal lawyer in Boston who is happy to help and offers free consultations for anyone with questions about criminal defense or grand jury investigations. To speak with a criminal attorney serving all of Massachusetts please call 617-393-0250.

Related Article:

Truck driver won’t be charged in crash that killed bicyclist

Published on:

It is alleged that he ran into the woman early in the morning on his way home, she offered sex, they returned to his apartment, after having sex he noticed his computer was missing. He grabbed her bag and found that his computer was inside. At this point he grabbed a metal pipe and began to beat her about the head and body, he carried her outside and left her on the street. He’s charged with armed assault with intent to murder and aggravated assault and battery causing serious bodily injury.

Police say that he did admitted hitting the woman in the head with a pipe after confronting her about the computer. His defense attorney mentioned that he was under the influence of alcohol at the time. There is no mention of sex for a fee so it appears that they agreed consensually to go home with each other. It is when he noticed the laptop missing that he appears to have become violent. Her body was discovered around 4:30am today after neighbors heard her screaming for help on the street.

The Judge set bail at $100,000. The man has no prior record but since the beating was so severe he is charged with the intent to murder and was given a high bail.

When someone is beaten so severely the charge can turn from assault and battery with a dangerous weapon to assault with intent to murder. This all depends on the severity of the injury; the Commonwealth must prove the intent to murder. Aggravated assault and battery can also be upgraded and charged as causing serious bodily injury as here. The Commonwealth must show that there was serious bodily injury. Other types of upgrades to assault and battery are assault on an elderly person, assault on medical personnel or police, assault on a minor or a disabled person.

Frank Fernandez is a criminal lawyer in Boston who deals with all types of criminal cases including assault and battery and assault with intent to murder.
He practices in Boston, Chelsea and all over Massachusetts. He has handled serious matters in Suffolk Superior Court, Middlesex Superior Court, Boston Municipal Court, Chelsea District Court as well as other district and superior courts throughout Massachusetts. He also practices in Federal Court.
Please feel free to call for a free consultation on your case 617-393-0250 or visit his website at
Related Article:

Published on:

The police received a tip that a woman was soliciting men for sex for a fee at the Tewksbury library. An undercover detective responded and quickly was engaged by a woman exchanging notes offering sexual favors for $60. She was arrested for prostitution and it is learned she had outstanding charges for drug possession.

The city of Boston through Mayor Walsh has recently announced a new tactic for combating sex trafficking by targeting the John’s when it comes to prostitution.
Usually it is the prostitute who is arrested and charged with a crime when it comes to prostitution. This new tactic will offer more support and services to prostitutes to help them get off the streets.

By targeting the demand, the John’s, it is expected that shaming these people through public criminal charges that the demand may dry up.

Frank Fernandez is a criminal defense attorney who handled charges of sex for fee in Boston and throughout Massachusetts for both prostitution and for those charged with soliciting prostitution. Feel free to call for a free consultation 617-393-0250.

Related article:

Published on:

The death of the confidential informant from an overdose lead to Braintree detectives accessing his cell phone and text messages.

That information led to a source who cooperated with the police and after an investigation including surveillance they were able to arrest eight of the suspected distributors.

The distribution ring was tied to two locations, one in Hyde Park which was a pick up point for customers, and another in Braintree where one of the main suspects resided. All eight are charged in federal court in Boston with Drug Trafficking in Heroin.

Frank Fernandez is a Boston criminal defense lawyer who focuses on the criminal defense of drug charges. Including possession, drug trafficking, possession with intent to distribute and distribution of drugs.

Related article:

Eight arrested in drug trafficking operation

Published on:

Ross Currier, 26, an accountant was seen in the North end of Boston playing basketball by a woman who had been recently sexually assaulted. She told police that she was 90 to 95% sure that he was the man who assaulted her. Currier was arrested and charged with sexual assault, he was released on bail and forced to wear a GPS bracelet on his leg this past month.

It was only after his alibi checked out through independent witnesses that the prosecutor agreed that they had arrested the wrong man. The case was dismissed in Boston Municipal Court and Currier made a statement to the press requesting someone take responsibility for what happened and apologize.

This incident is a strong reminder of how eye witnesses and victims can misidentify a suspect very easily. What happens in a traumatic moment can be remembered far differently than what actually occurred. Our brains process and remember sensory input differently and memory accuracy is affected by stress and anxiety.

The police are acting on what they believe is accurate information from a victim who appears to be sincere in her identification. But what happens when a victim does not remember or misidentifies a suspect? It leaves the suspect with the burden of proving his innocence.

Misidentification happens all the time and it was not until DNA testing that many misidentified prisoners were released after it was discovered that they truly were not the ones who perpetrated the crime in question.

It is important to understand the human brain is not perfect and can only take in and recall sensory data in a limited manner which varies for each of us. High stress or a frightening event make it even harder to accurately take in or recall sensory information. Once time passes events can be manipulated in the mind without even knowing. A victim may truly believe in a sequence of events or an identification when asked to recall not knowing they have in fact changed the events in their mind to make sense. The same event can be recalled by multiple witnesses in different ways, this happens all the time.

Frank Fernandez a criminal lawyer in Boston defends people accused of crimes who have been wrongfully identified. Experts are used to educate the jury as to the pitfalls that exist in identification and how just because someone sincerely believes they are sure of a situation that it may not be the case. For a free consultation call 617-393-0250
Related Articles:

Man wrongly accused in assault demands apology

Published on:

Lieut. Edward Walsh and firefighter Michael Kennedy were killed battling a large fire which started in the basement of a brownstone and spread quickly to the upper levels of the building.

The fire is still being investigated and cause at this time remains unknown. A large explosion occurred as the fire grew and high winds accelerated the spread of fire.

The building had eight separate apartments with the fire beginning in what appears to be the basement.

It will not be until the conclusion of the investigation that we have any idea as to the cause of this fire. At times it is very difficult to ascertain what may have been the cause or source of such a destructive blaze.

This is a stark reminder of how the men and women of the Boston fire Department and Police Department put their lives on the line every day for the people Boston.

Related Story
Authorities search for cause of deadly Back Bay fire that killed two firefighters