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.

Guns, Drugs and Assaults Result In Home Imprisonment North Of Boston

Eric S., 46, of North Andover, (hereinafter, the “Defendant”) is home again…for now. In fact, he is actually confined to his home and ordered to wear a bracelet monitoring system. Through the apparently successful arguments of his attorney, he is not being held in jail without bail.

But it was a close call.

The Defendant’s latest round of legal trouble resulted from a the execution of a search warrant which was served at his home on March 23rd. Police say that they found a .38-caliber revolver, 12 grams of cocaine, $70,000 cash, and pills believed to be oxycodone and Ecstasy. He was charged with possession of a firearm without a license, possession of cocaine with intent to distribute, and possession of cocaine.

That was not the start of his problems, however. The previous evening, he had been arrested as well. That time is was on another kind of warrant – arrest warrants. The warrants had been issued in Tyngsborough where police say that he was involved in an incident early Sunday morning, March 22, at Angela’s Coal Fired Pizza, a restaurant owned by his wife.

During the Sunday morning incident, the Defendant allegedly beat a manager of the restaurant with a baseball bat, stuck a gun in his mouth and accused him of stealing $20,000 cash. The manager suffered a cut lip requiring stitches and bruises on his body from repeated strikes with the bat, police said.

For that incident, the Defendant was charged with kidnapping, assault and battery with a dangerous weapon, and threatening to commit murder.

Last Thursday, in Lowell District Court, there was a dangerousness hearing to determine whether the Defendant posed a danger to the community and should remain locked up pending his trial. The court freed him on $20,000 cash bail, but with strict conditions that included home confinement on a bracelet monitoring system, and an order to have no contact with the victim.

In Lawrence District Court yesterday to answer the charges that resulted from the search of his home, the Defendant was released under the same conditions. However, the court also set $25,000 cash bail without personal surety, which means the Defendant did not have to post the bail, but that if he violates any of the conditions of his release a bail commissioner would have to impose the $25,000 cash bail.

During that bail hearing, the Commonwealth had argued against the Defendant’s release on these bail conditions. The prosecutor pointed out that the Defendant was a convicted felon who had previously been involved in two separate federal cases who had already done time, had access to money and that, of the two firearms involved in the Tyngsborough incident, only one had been recovered.

Yes, that would be the Tyngsborough incident of which the Defendant is currently presumed innocent.

The Defendant’s attorney attacked the state’s case pointing out that his client has always shown up to court and so has no defaults on his record, has lived in the area his entire life, is married, and has three children. This shows he has strong ties to the community.

“He is on home confinement, not permitted to be at liberty,” the lawyer argued, adding that the judge in Lowell told him to make house calls because the Defendant was not allowed to leave his home to go to his office to assist with his defense.
He also questioned the validity of the search warrant and affidavits which were produced through the Lowell District Court, which is in Middlesex County.

Attorney Sam’s Take:

Bail hearings these are much broader in scope than people realize.

The issue in these hearings is to ensure that the defendant will return to court. If the Commonwealth wishes to make a “safe streets” argument, that is more appropriate in a dangerousness hearing. Surely, the fact that the Defendant always shows up for court appearances is the critical point. This is especially true since his earlier cases, to some extent, were felonies. This is because the more serious the charges, the more likely the defendant is to flee and so the higher the bail.

The argument made by the prosecutor about the alleged missing gun, while it can be effective, is improper for a bail hearing. First of all, the Tyngsborough allegations have yet to be proven and, under our law, the Defendant is supposed to be presumed innocent of them. Second, it has little to do with whether the Defendant is likely to show up in court.

A decent counter argument for the defense to make would have been to point out that, if the charges resulting from the search warrant are true, then the Defendant would have to be an idiot if the Tyngsborough charges are also true. It is hard to imagine someone who had just been released for such charges to still have drugs and one of the guns allegedly involved in the earlier crime laying about the house.

A better argument for the prosecutor would have been to point out the seriousness of the charges currently against him. The Defendant is looking at the potential of many years in prison if indicted. These are felony charges that he is facing, in both courts. There is no mention of whether he is still on probation or parole from his earlier cases, but if he is, these new cases would clearly trigger a surrender hearing to land him back in government housing.

One final point. The fact that the Defendant did not have a license for the gun is really a nonstarter. He is a convicted felon, which means it is illegal for him to be in possession of a firearm in any event. Of course, having those drugs lying around the house would hardly be considered legal either.

The full article of this story can be found at http://www.eagletribune.com/punews/local_story_090210611.html

Contact Information