Chris Brown & the Search Warrant

Most of you have undoubtedly heard that there was a standoff between the Los Angeles Police and Chris Brown, who was at home. Although this has been a bit sensationalized, the police were at his home after a phone call was made by a woman who claims she was threatened by Brown, but there was no “standoff.”

Instead Brown exercised his right to NOT allow the police into his home without a search warrant. Most people might think that if the police come knocking on your door that you have to let them in, but you DO NOT have to let them in. The home is one of the sacred things that the law protects and that is why we have laws about ‘breaking and entering’ and ‘trespassing.’ So if the police come to your home and ask to come in, you can do what Chris Brown did and ask to see a warrant! If they do not have a warrant and you don’t want them in your home, then they can’t come in! If they DO have a warrant, then you DO have to let them in, but until then it is your call. Chris Brown refused to let the police in without a warrant, but after the police obtained one, he let them in, was arrested and released on bail.

Of course there are always exceptions to this rule and we aren’t sure what is going to happen to Chris Brown just yet, but if you have any questions about your rights or there has been a police search at your home, please call our office at 508-438-1198.

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

#chrisbrown #searchwarrant #homesearch #criminallaw #yourrights

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Padilla v. Kentucky: It’s impact on Criminal & Immigration Law

In 2010, the court held in Padilla v. Kentucky that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Therefore if your defense attorney did not advise you of the immigration consequences of your plea, the disposition could be vacated. The problem is that the Supreme Court held that the new rule in Padilla should not apply retroactively to criminal convictions before March 2010.

The good news is that the Massachusetts Supreme Judicial Court didn’t like that, so in Commonwealth v. Clarke, the court held that Padilla v. Kentucky applies retroactively to guilty pleas entered after April 1, 1997. If Padilla applies to you, you still have to prove ineffective assistance of counsel.

There is a two prong test to whether there was an ineffective assistance of counsel. The first prong is found in Commonwealth v. Saferian and states “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.”

The second prong is that the consequence of counsel’s serious incompetency must be prejudicial. In Clarke they define prejudice as “a ‘reasonable probability’ that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Therefore in order to prove ineffective assistance of counsel you have to prove that your lawyer didn’t act or advise you as a normal lawyer should AND that your criminal proceeding results would have been different if you had received proper advice.

Padilla was significant, because now non-citizens must be advised of immigration consequences if they are in criminal proceedings, but in order to get your case vacated it may still be a long road ahead!

If you have any questions about whether Padilla applies to your current situation, please call our office at 508-438-1198.

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

#criminallaw #immigration #padilla #retroactive #clarke

Dating in the Internet Age: Catfishing and Statutory Rape

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In the new millenium, meeting a significant other is no longer 2 consenting adults at a bar or night club flirting; dating is not a set up by mutual friends.  Most dating relationships are a matter of swipe left or right on Tinder;  answer 1000 questions on Eharmony; or clicking on interesting profiles and messaging back and forth on Plenty of Fish.

When you meet a prospective significant other on the internet, there are so many unknowns.  Because the circle of possible mates has expanded by a million, there is no way to knoow for sure you are getting what you are looking for.

A large danger of online dating is catfishing.  Catfishing occurs when someone is untruthful about their identity in their online profile.  This can include lies about gender, age, appearance or other characteristics.

From a legal prospective, lies about age can be extremely dangerous to the other party.  Many of the websites require participants to be a certain age and to check a box that they are 18 or to enter a birthdate, however, there are no safeguards in place to ensure that the parties are actually over the age of 18.

In Massachusetts, mistake of age of your sexual partner is not a defense to a charge of statutory rape, even if that mistake is reasonable. If the child claims to be 17 years old, and produces a drivers license indicating they are in fact 17 years old, it is not a defense to statutory rape if that child is in fact 15 years old.   (Commonwealth v. Miller, 432 N.E.2d 463 (Mass. 1982).)

Criminal charges can result when the parties in the above scenerio engage in sexting with one another.  Sending or receiving or forwarding sexually explicit messages, photos or images to a person under the age of 18 is a crime in Massachusetts.  It is illegal for ANYONE to knowingly send out or desseminte pictures  of a person under 18 in the state of nudity or engaged in a sexual act.  This includes the act of the child sending out the lewd pictures, which can actually result in felony charges being filed AGAINST the child taking the pictures and sending them out.  In the same vein,  mere possession of these photos (without further dissemination) is also a felony, and can result in charges to anyone that knowingly possesses these photos, even if they were not solicited.

With internet dating becoming predonimant, the danger of children posing as adults on social networks and on dating websites has become a growing problem.  A lack in adult supervision with internet use, and growing popularity of types apps and websites make it a clear danger to anyone who is actively looking to date.  If you are involved in internet dating, do your homework.  Make sure your partner is who they claim to be before engaging in sexual conduct.  Make sure your partner is of age before engaging in sexting.

If you find yourself in a situation where you have been catfished and need legal advice, contact Broadbent & Taylor at (508) 438-1198 for a consultation.

THIS BLOG WAS WRITTEN BY ATTORNEY KELLY BROADBENT.  IT IS NOT INTENDED AS LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP.

#CRIMINALLAWYER #MASSACHUSETTS #catfish

 

 

CWOF? Pre-Trial Probation?

If you have a criminal matter and you are thinking about a plea, you have several options, including asking for a CWOF or Pre-Trial Probation, but what is a CWOF and what is Pre-Trial probation and what is the difference between the two terms? Read on.

A CWOF stands for “Continuance without a Finding.” A CWOF is a determination by the court that there is sufficient evidence against the defendant, but the court refrains from entering the ‘guilty’ finding. The CWOF is a final adjudication, but the defendant avoids having the ‘guilty’ on his/her record. The court will continue the case for a certain amount of time, and as long as the defendant adheres to certain conditions, the criminal matter is dismissed. If the defendant violates any of the conditions, the CWOF may be revoked and a guilty finding may be entered, which may include jail time.

Pre-Trial Probation is different than a CWOF because you do not have to admit that there is sufficient evidence against you, and if you violate pre-trial probation you are not found guilty, but your case returns to the court and goes through the process once again.

If you have any questions or find yourself in a criminal conundrum please call our office!

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

 

#cwof #pretrialprobation #criminal

A Warrant? Am I Going To Jail?

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If you do not attend a criminal proceeding, Massachusetts Courts will issue a warrant for your arrest.

Most envision a person with a warrant on the run from the law, hiding out, keeping a low profile.  Sometimes, this is actually the case, where a criminal defendant purposely fled after the arraignment to avoid facing a likely punishment.

A different scenario occurs when someone mixes up a court date, and is not present on a scheduled date.

A third scenerio occurs in situations where a summons for a show cause or arraignment was sent out, however the defendant never received the summons.  This occurs frequently in criminal motor vehicle cases where the address was incorrect with the registry or the person moving between receiving a criminal citation and the date for the hearing getting mailed out.

If a warrant issues, typically, the Registry of Motor Vehicles will suspend your license.  You will usually receive a notice from the RMV and be prompted to clear the warrant.  If an out of state driver receives the warrant, it may not initially suspend a license but eventually, the home state will discover the warrant and prevent the driver from renewing the license. 

A large number of warrants that we deal with at Broadbent & Taylor involve criminal motor vehicle summonses from 15-20 years ago that never reached the defendant.  The defendant learns of the outstanding criminal charges when they are told they are not able to renew their driver’s license.

If you discover that you have an outstanding warrant (or if you know you have one and want to clear it up), it is smart to first consult an attorney.  A court will allow you to walk in to clear up the warrant, but depending on the charge and the circumstances behind the missed date, the court may revoke bail, or order bail to let you go free.  An attorney is key to trying to resolve the old charges in the most favorable manner.

If you have an outstanding warrant in Massachusetts that you are looking to clear up, contact Broadbent & Taylor at (508)438-1198 to discuss the options. 

THIS BLOG IS NOT LEGAL ADVICE. IT IS NOT MEANT TO FORM AN ATTORNEY CLIENT RELATIONSHIP

#CRIMINALLAWYER #MASSACHUSETTS #WARRANT #SUSPENDEDLICENSE

Immigration Law + Criminal Law = ?

If you are NOT a US citizen, there is ALWAYS a chance that you can be deported! Being a legal permanent resident for 20 years or more does not protect you from deportation, IF you commit a crime!

Criminal law and immigration law are two distinct fields of law, but the problem is that committing certain crimes can lead to triggers in immigration law. The other problem is committing a crime in criminal law has a different name and different definition in immigration law. For instance, in immigration law you can be deported for committing an “aggravated felony” or committing two or more “crimes involving moral turpitude.” But if you look at the criminal statutes in Massachusetts there are no aggravated felonies or crimes involving moral turpitude.

What does “aggravated felony” and a “crime involving moral turpitude” (CIMT) mean? The answer is tricky. Under the Immigration and Nationality Act, the term aggravated felony includes acts of murder, rape, sexual abuse of a minor, drug trafficking, trafficking firearms or other destructive devices, theft or burglary where term of imprisonment is at least one year, child pornography, treason, and more. As you can see the list is pretty serious and extensive.

The term “crime involving moral turpitude” is even trickier. The Board of Immigration Appeals defined it as “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Well what does that mean you ask? The immigration courts have determined that it generally includes: spousal abuse, child abuse, robbery, aggravated assault, animal fighting, theft, fraud, driving under the influence, and more. Crimes involving moral turpitude are much broader and can have serious consequences!

Those who are not US citizens should definitely hire an attorney if they are charged with ANY crime to ensure that it does NOT affect their immigration status!

Also if you are legal permanent resident and it is possible for you to naturalize, DO IT! You never know what can happen in the future and if for whatever reason you are charged with a crime, at least you will be assured that you cannot be deported if you are a citizen!

 

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

Cinco de Mayo– Margaritas and Mugshots

Today is Cinco de Mayo, a day notorious for eating Mexican food and drinking Margaritas and Coronas.

On May 5, younger crowds go out to bars to imbibe. This year, with Cinco de Mayo falling on a Thursday, its the perfect recipe for a night out to celebrate.

If you are heading out tonight, a few things to remember.

1.  The police also know it is Cinco de Mayo.  They will be out stopping cars tonight, looking for impaired or drunk operators. If you are drinking, call a friend, call a cab, call uber.

2. Drunk drivers will be on the road.  If you are not drinking and are on the road,  keep an eye out for other motorists. Be extra vigiliant watching for other drivers that may pose a hazard to you.

3.  Have fun.  Enjoy your margaritas.  Enjoy your enchiladas.  But be safe.  No one wants a Cinco de Mayo mugshot!

4. If you are arrested, call Broadbent & Taylor  for representation at 508-438-1198.

5.  If you are involved in an accident, contact us to see what your next step is.

#accident #massachusetts #drunkdriving #accidentlawyer #oui #ouilawyer