2016 Case Summaries
December 2, 2016
Middlesex Superior Court
No. 2014 CR 1447
Client, 22-year old female college student is arrested, charged and later indicted on the charge of Armed Robbery. It is alleged that she was a driver of a motor vehicle, while her boyfriend and another, committed armed robbery of a young male with the alleged use of a ‘shot-gun’. The case proceeded through the District Court and then onto Superior Court pursuant to anindictment. A number of hearings were held, most notably with regard to the ‘sufficiency of evidence’ against the Client. On this day, after almost 2 years, the Court agreed with Attorney Kelly’s argument that the prosecutor lacked probable cause to proceed to trial. The Court ordered the case DISMISSED, and the Prosecutor accepted the decision, thereby waiving any right of appeal.
RESULT: CASE DISMISSED BY THE COURT AFTER HEARING.
November 29, 2016
Waltham District Court
No. 1651 CR 781
Client, 35-year old ‘Hispanic’ male is detained and arrested on a public street in response to call made by a civilian. In short, a civilian called the police, after noticing the Client walking through his neighborhood and ‘looking suspicious’ and further stating “he does not belong in the area”. The civilian caller believed the Client was stealing items from houses along the street. The police stop the Client, examine his ‘backpack’ and discover that he has not stolen anything. However, they charge him, evidently upon a report from another civilian that his items that belong ‘on his front porch’ ( were somehow moved to the driveway ). No one ever witnessed the Client STEAL OR ATTEMPT TO STEAL ANYTHING. However, he is charged with Attempting to Commit a Crime. Atty. Kelly files a Motion to Dismiss based on the ‘lack of probable to cause’ to arrest. After hearing and after ‘scolding’ the prosecutor relative to the ‘facts’ of the case, the Judge is dismissed.
RESULT: CASE DISMISSED BY THE COURT AFTER HEARING.
November 9, 2016
Newton District Court
Jury Session
No. 1412 CR 576, 1412 CR 246
Client, 22-year old male with no prior criminal record is operating his motor vehicle, when it suddenly leaves the roadway and seriously strikes a pedestrian. The police respond and after interviews of witnesses and the client himself, he is charged with OUI-Drugs Causing Serious Bodily Injury, Possession of Drugs and Reckless Operation of a Motor Vehicle. An inventory of his motor vehicle reveals prescription and non-prescription bottles of pills, along with marijuana. Attorney Kelly is retained at the outset. A series of hearings are held in Court, ranging from Motion(s) to Suppress Evidence to a request for the allowance of the Client to enter and complete an out-of-state drug rehabilitation program and follow up treatment.
The pedestrian/victim undergoes surgeries requiring permanent metal rods to be placed in his body. The prosecutor is seeking a committed jail sentence prior to trial. Throughout the pending months after arraignment, Attorney Kelly attempts to persuade the prosecutor that there is no evidence that ANY drug played a role in the accident. On this day, approximately 24 months after the accident, the prosecutor concedes that there is insufficient evidence to proceed to trial on the charges of possession of drugs and operating a motor vehicle under the influence of drugs thereby causing serious bodily injury as a result. As such, the lone remaining charge of ‘Reckless Operation of a Motor Vehicle’ remains.
The prosecutor continues to seek a 6 month jail sentence on a plea to said charge. Atty. Kelly persuades the Court to enter a CWOF [ Continuance Without a Finding ],with a period of probation and to continue with drug treatment, attend college and work. The Court agrees, imposes an 18 month period of probation with conditions. At the successful completion of same, his case will be dismissed, with no record of conviction.
RESULT: SERIOUS OUI CHARGE / DRUG CHARGE, DISMISSED ON DAY OF TRIAL – CLIENT PLACED ON PROBATION WITH LIKELIHOOD OF DISMISSAL [ Reck Op. Chg. ] AT THE END OF PROBATION, THEREBY Preserving his Clean Criminal Record.
November 2, 2016
Essex Superior Court
No. 2015 CR 341
Client, 53-year old male with his co-defendant, are indicted for felonies ranging from larceny, conspiracy and fraudulent entry into corporate record books. The co-defendants’ were principal owners of a condominium management company that oversaw approximately 32 ‘condo associations’ in New Hampshire and Massachusetts. It was alleged by the prosecutor that a ‘fraudulent billing’ practice was set in place to ‘inflate’ hours performed by maintenance workers relative to repairs at said associations over a 2 year period. Attorney Kelly is retained, together with 2 other attorneys. The case involved significant ‘media coverage’ from arraignment to resolution.*
On this day, after several days of in-court conferences with the prosecutor, attorneys’ and the judge, the case is resolved. Both client’s essentially pled nollo contendre to the charges, thereby avoiding an admission of guilt
( although a ‘guilty finding’ is in fact recorded on their criminal records ). It should be noted that prior to the ‘plea’, approximately 18 months of court hearings, the review of voluminous records, and the interview of various witnesses and individuals were conducted. Also, it is must be recognized that the Judge presiding over the matter found that the prosecutor failed to honor a previous agreement and lambasted him for his actions and conduct. *
In the end, despite the prosecutor’s request for jail and his failed attempt to ‘renege’ the agreement – the judge imposed probation for 2 years, with a requirement that the defendants’ pay an amount of restitution ( eventually agreed upon by the parties ) and that each refrain from engaging in ‘condo managing’ for 2 years.
* See the Lawrence Eagle Tribune ( Front Page ) November 3, 2016.
RESULT: JAIL AND A ‘GUILTY PLEA’ AVOIDED.
October 21, 2016
Westborough District Court
No. 1667 CR 644
Client, 23 year-old female is charged with OUI – Drugs. It is alleged that she was operating her vehicle while under the influence of ‘LSD’. Her car left the roadway, flipped over and landed on the roof. Fortunately she was not seriously injured. The police, after conversation with her, coupled with eye witness accounts of the incident, decided to charge her with OUI-Drugs. Attorney Kelly is retained, after several in-court hearings, the case is set for trial. On this day, after trial, the client is found NOT GUILTY OF OUI – DRUGS.
In essence, the prosecutor could not prove through it’s witnesses, civilian, police and fire dept. personnel, that in fact the alleged ‘indigestion’ of drugs contributed to the accident and/or that she was impaired as a result.
RESULT: AFTER TRIAL, CLIENT NOT GUILTY OF OUI DRUGS.
September 14, 2016
Newton District Court
No. 1612 CR 413
Client, 43 year-old male is charged A&B upon his wife. It is alleged that after a night of ‘arguing’, that Client struck his wife, a 911 call is made, Client arrested. The wife contact’s prosecutor later, attempts to ‘redact’ her statements, and is met with obvious refusal. The case is set for jury trial. Wife invokes her marital privilege, case dismissed.
RESULT: CASE DISMISSED ON DAY OF JURY TRIAL.
August 15, 2016
BMC – Boston
No. 0201 CR 1682
Client, 30 year-old Russian male is charged with Larceny over $250.00 from a high end retail store in Boston, 2002. The Client has been on default [ failure to appear in Court ] for almost 15 years. After a series of hearings and meetings, the prosecutor finally concedes that it cannot move forward on the charges and agrees to dismiss the case.
RESULT: CASE DISMISSED PRIOR TO TRIAL.
July 19, 2016
Waltham District Court
No. 1651 CR 786
Client, 26 year-old male is charged with A&B on a family member ( his wife ) and the use of a dangerous weapon. It is alleged that the Client and wife engaged in a domestic dispute
that became physical, resulting in cuts to each other. A neighbor calls 911, police arrive, both parties are ‘bloodied’. As is usual the case, the male is arrested and charged. Atty. Kelly investigates the allegations, sets the matter for trial. On this day, the wife appears as requested by the prosecutor. However, with advice of ‘other’ legal counsel, she invokes her marital privilege AND her 5th Amendment Right not to testify. As a result, case dismissed.
RESULT: CASE DISMISSED ON DAY OF TRIAL.
May 3, 2016
Fall River District Court
No. 1523 CR 6845
Client, 24 year-old male bartender is charged with OUI and Negligent Operation of a Motor Vehicle. At approximately 1:45 am, the Client, after leaving his place of employment and after consuming several alcoholic beverages, is stopped by police after allegedly failing to come to a complete stop at a ‘stop sign’. The Client agrees to submit to a series of Field Sobriety Tests ( never ever a good idea ). After the completion of which, it is the officer’s opinion that he failed each and every one. He is arrested, refused the Breath test and arraigned in Court the following day. Atty. Kelly is retained the case is scheduled for trial. On this day, trial begins, the police officer testifies as to his observations, his experience and his opinion relative to the issues before the Court. Atty. Kelly aggressively cross examines the Officer as to his entire testimony he provided on direct examination by prosecutor, together with a review of the ‘booking video’ that Atty. Kelly produced at trial, which clearly favors the Client’s sobriety at the time of his arrest. At the conclusion of trial and after argument by the prosecutor and Atty. Kelly, the Court found the Client NOT GUILTY as to all charges. His license is restored by the Court ( initially suspended for 180 days as a result of refusing to take the breath test ).
RESULT: AFTER TRIAL, CLIENT NOT GUILTY OF OUI AND NEGLIGENT OPERATION OF A MOTOR VEHICLE.
April 13, 2016
Newton District Court
No. 1512 CR 688
Client, 25 year-old male school teacher is charged with operating under the influence of alcohol, OUI. The Client’s vehicle [ at approximately 3 am ] had apparently traveled an unknown distance with a tire that was completely shredded from the rim, exposing a ‘damaged rim’ that left markings in the roadway. The police arrived, questioned the Client, it was alleged that he smelled of alcohol, and had glassy eyes, slurred speech, etc. He agreed to perform several Field Sobriety Test(s), ‘one leg stand ’ ‘9 step heel to toe walk ’ and recite the alphabet. It was the police officer’s opinion that he failed each test. He was arrested and refused the Breathalyser at the police station. Atty. Kelly was retained and set the matter for trial. On this day a ‘Bench Trial’ was held whereby the arresting officer was aggressively questioned by Atty. Kelly relative to his experience, police procedure and observations and particularly his opinion concerning the FST performance. At the conclusion of trial and after argument by the prosecutor and Atty. Kelly, the Court found the Client NOT GUILTY.
RESULT: AFTER TRIAL, CLIENT NOT GUILTY OF OUI.
March 24, 2016
Waltham District Court
1551 CR 1903
Client, 36 year-old male with an extensive criminal record, which is largely based upon his drug addiction, is once again arrested. He is charged with Attempting to Break into an ATM machine and Destruction of Property over $250.00 [ said crime was recorded by surveillance cameras ]. The Client is brought before the Court, Atty. Kelly is retained and persuades the Court to allow the Client to enter and complete an intensive ‘drug treatment facility’ with follow up outpatient treatment. Over the prosecutor’s fierce objection, the Court agrees. On this date it is reported to the Court by the Probation Department, that the Client has successfully fulfilled all requirements as ordered by the Court. As a result, the Client will remain on probation with obvious conditions to ensure his compliance. Thereby allowing the Client to continue to work, provide for his family and avoid jail.
RESULT: INCARCERATION AVOIDED, DRUG TREATMENT ALTERNATIVE.
February 11, 2016
Suffolk Superior Court
No. 2012 CR 11015
Client, 33-year old female, mother of a single child, is charged along with 5 others in a conspiracy ‘ring’ to obstruct justice relative to the investigation and prosecution of an ‘insurance fraud case’. The Client was charged with 7 felonies that allegedly detailed her involvement in the so-called conspiracy. The case commenced in 2012. During the last 4 years, countless hearings and appeals were put forth and argued before the trial court and the appeals courts. Subsequent to this day, it was finally conceded by the prosecutor that there was not sufficient evidence to proceed against the Client. Atty. Kelly had been advocating same on behalf of his Client during that entire period. On March 29, 2016 the Court accepted the prosecutor’s ‘Motion to Dismiss’ the case, citing ‘in the interests of justice’. All 7 indictments were DISMISSED. The remaining co-defendants either pled guilty or are awaiting trial.
RESULT: INDICTMENTS DISMISSED, PRISON CONFINEMENT AVOIDED.
January 20, 2016
Waltham District Court
No. 1551 CR 1379
Client, 22 year-old male college student is charged with Trafficking in Cocaine ( a Felony that carries a Mandatory Minimum of 3 ½ years in State Prison ) and Conspiracy to Violate the Drug Laws. In short, the Client was a passenger in a motor vehicle operated by a ‘friend’ who was the subject of an ‘undercover’ purchase and sale of drugs. On the day of the ‘exchange’, the Client asked for a ride back to school and the ‘friend’ agreed, ‘but he had to make a stop first’. Undercover officers converged upon the motor vehicle after the ‘sale’, which took place away from the vehicle.
However, the Client was arrested and charged along with the ‘friend – drug dealer’ and immediately suspended from school ( a senior with 1 semester remaining before graduation in May, 2016 ). After several meetings with the District Attorney’s Office, the Prosecutor finally agreed to ‘dismiss’ the charges. The Client was able to enroll this day ‘back to school’ to complete his education.
RESULT: DISMISSAL – Mandatory State Prison Sentence Avoided, Client able to Resume College Education, ‘Clean Criminal Record’ Preserved.
January 15, 2016
Worcester District Court
No. 1566 CR 1185
Client, 52 year-old male is charged with 1st Offense OUI after allegedly operating his motorcycle in excess of the speed limit on Rte. 495 South. The Client was stopped by a Mass. State Trooper, who alleged he was speeding [ 80 MPH ]. After conversation with the Trooper, he determined that he had been drinking, ( smelled of alcohol, red eyes, slurred speech, admitted to “drinking less then 7 drinks” ) and arrested the Client and charged him with OUI. The Client refused the so called ‘Field Sobriety Tests’ and the ‘Breath test’.
On this date, Atty. Kelly waived the scheduled ‘jury trial’ and proceeded to trial with the judge alone. After extensive cross-examination by Atty. Kelly of the Trooper, the Prosecutor ‘rested’ his case. The Court concluded that the Prosecutor failed to present an adequate case and found the Client NOT GUILTY.
RESULT: AFTER TRIAL, CLIENT NOT GUILTY OF OUI.