Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston-Area Lawyer Struggles To Prepare For Dangerousness Hearing After Client Is Found With Weapons And Assaults Neighbors

Nikita R. 50, (hereinafter, the “Defendant”) lived in the near the City of Boston…Arlington, in fact. Until this week, he was perhaps an average-looking man who you might pass on the street and give a friendly nod to. His neighbors knew him mostly as a quiet guy who smoked cigarettes on his porch.

This changed on Monday when the Defendant put on camouflage fatigues and, armed with a 9mm handgun, allegedly ran up and down a tree-lined street screaming incoherently and pointing the handgun at his neighbors according to police.

This morning, he is a guest of the Commonwealth, held without bail and facing various felony charges, as his attorney prepares to argue to the a judge that he is not a danger to the community.

Don’t let that one lone handgun fool you, though. He was also carrying an illegal double-sided knife, police said. Inside his apartment on Magnolia Street, investigators with a search warrant discovered several more illicit knives and an illegal, high-capacity SKS assault rifle with ammunition, police said.

“Suffice to say, he was well armed,” said Chief Frederick Ryan of the Arlington Police Department.

The Defendant had been acting strangely earlier that afternoon, according to a neighbor. The neighbor ran into him and believed him to be drunk. During their interaction, the neighbor noticed the black butt of a pistol sticking out of the Defendant’s pocket. Turning to retrieve his cell phone for the Defendant to use, he heard the mechanical sound of the pistol cocking behind him, according to the police report.

Alarmed, the neighbor ran to another neighbor, telling him to call police as the Defendant allegedly entered the downstairs apartment.

After a short time, there were three neighbors trying to avoid what appeared to be the Defendant’s trigger finger.

The man was silent throughout the ordeal, and stumbling a little, as though he was drunk, according to witnesses.

At one point, the Defendant lifted the handgun and pointed it at neighbors fleeing toward Massachusetts Avenue.

“I thought he was going to pull the trigger,” one neighbor said.

Arlington Police officer Mike Hogan arrived from a traffic detail within two minutes of the 911 call, and shortly after, nine police officers had surrounded the white, two-family house, with guns drawn.

The Defendant emerged from the house, stepping out onto the fenced in porch, pulling the handgun out of his pocket, according to the police report.

It seemed as though the suspect was taunting police, daring them to shoot him, according to Lt. Robert Bongiorno, who was at the scene.

Following police commands, however, the Defendant placed the gun on the porch, and started to raise his hands in the air, but as police were moving in to arrest him, he allegedly moved for the gun.

Hogan got to him first, using a forearm tackle to push him into a snow bank, according to the report. In the Defendant’s pocket police found the folding knife and a pack of cigarettes.

Police did an initial sweep of the house, making sure there were no other victims.
Late Monday night, police executed a search warrant for weapons, and found a large capacity, Chinese-made SKS assault rifle in his attic.

Police plan to run ballistics tests on the assault rifle and handgun, a .45 caliber Smith & Wesson, to see if either is connected to other crimes, Bongiorno said.

The Defendant was arraigned and charged with home invasion, carrying a firearm without a license, disorderly conduct, and two counts of armed assault in a dwelling. There is an additional charge of possession of a large capacity firearm. In Massachusetts, armed assault in a dwelling carries a minimum 10-year sentence in a state prison, and Massachusetts home invasion, often tied to a burglary, potentially wins one a sentence of 20 years to life in prison.

“Clearly, officers had authority to use lethal force. They showed great restraint and took this gunman into custody without injuring him,” a police spokesman said. They took a risk and in this case it worked out.”

Attorney Sam’s Take:

The Defendant, albeit in custody and facing many years of potentially being a guest of the Commonwealth is actually lucky.

He’s alive.

Police are only supposed to use deadly force when faced with a similar threat. In this case, there was every indication, particularly when he reportedly went for his gun, that the Defendant was about to fire upon the officers.

So, although it cost him membership to the “Hey, I’ll Bet I Can Make This Situation Worse” club, the Defendant made the right decision and, as a result, ended up not experiencing what is known as “suicide by cop”.

So…once again…with all these witnesses…what will the defense be?

Maybe…”He meant no harm. He’s just a lonely guy who wanted to show his neighbors his neat new gun”? “He thought the gun was really a fancy new lighter”? How about, “He’s was really just returning home after purchasing a new item for the arsenal he was gathering at home to turn in to the police”?

Not too likely.

The defense will probably be some kind of insanity defense. Ironically, though, the move that most likely saved his life may work against such a defense. He knew enough to put the gun down. On the other hand, he also went to grab it afterwards…so that could help the defense.

Although nobody was physically injured, the Defendant was charged with assault. This may be confusing as we tend to use the words “assault” and “battery” almost interchangeably in general parlance. They are not the same. “Battery” is the actual intentional offensive touching of another. “Assault” is the threat of same. In other words, as I pull back my fist to hit someone, I am committing an assault until I actually hit them. Then it is a battery.

In this case, the pointing of the gun is the assault.

You will notice the heavy penalties that the Defendant is facing. Massachusetts takes home invasions and crimes of violence, or potential violence, quite seriously. Should he somehow win the dangerous hearing scheduled for Friday, he is likely to be help on very high bail.

The full articles of this story can be found at http://www.boston.com/news/local/breaking_news/2009/02/police_armed_gu.html and http://www.wickedlocal.com/arlington/news/x363580410/Gunman-captured

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