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 MAN CHARGED WITH ARMED ROBBERY AND ASSAULT WITH A HYPODERMIC NEEDLE FACING LIFE SENTENCE

This Boston crime is an interesting take on what is usually known as a “drug deal gone bad”. Instead, the closest thing to a narcotic was a syringe and the deal involved alcohol.

Jose Soler, 47, of Hyde Park (hereinafter, the “Defendant”) was one part of the alleged ill-fated agreement. On the other side were two underage kids who were rather thirsty.

Thirsty for alcohol, that is.

According to law enforcement, the kids offered the Defendant $25 to buy them alcohol. $20 was for the actual booze and $5 was to be for the Defendant’s trouble. The Defendant agreed.

When the Defendant came out of the Forest Hills Liquor Market, however, he was empty-handed.

The kids demanded their money back. Police say that the Defendant refused to comply. He did, however, give them back $3…perhaps for their trouble.

The kids apparently put up a fuss.

The Defendant allegedly put up a needle. He had had the needle in his shorts. He removed the cap, plunged the needle into his arm and drew blood. Then, he brandished the needle at the kids and “indicated he was infected with the AIDS virus,” police said.

Transit officers arrested the Defendant shortly thereafter. Nobody was injured…unless you count the Defendant’s arm.

The Defendant was charged with two counts of armed robbery and assault with a hypodermic needle. In West Roxbury District Court yesterday, the Defendant was ordered held on $2,500 cash bail.

The Defendant faces a maximum of life in prison for armed robbery or a maximum of 10 years in state prison for using the hypodermic needle as a weapon, according to the Suffolk District Attorney’s office.

Attorney Sam’s Take On Assaults, Robberies And Weapons

One of the chief lessons this story demonstrates is that law enforcement gets to decide which cases to prosecute.

If not for the alleged assaultive behavior of the Defendant, if the police caught the kids attempting to hire him to get them alcohol, they could have been the ones with the word “defendant” after their names. However, the charges brought against the Defendant are clearly more serious than a minor trying to get alcohol. Therefore, the kids are worth more as complainants than they are as defendants.

We have discussed many times the fact that anything can be considered a dangerous weapon. If I kick you and I have shoes on, my shoes are dangerous weapons (“shod foot”). Of course, a hypodermic, with or without HIV, is easily recognized as a weapon by most peoples’ views. It really does not matter whether or not the Defendant had the virus.

Most likely, the defense in this case will be the theory of self defense. The Defendant may claim that he was reasonably in fear that the kids were about to physically attack him. After all, there were two of them and one of him.

“How can he be charged with assault? He did not touch them.”

The actual touching would be a battery. Assault is simply the threat that he made while showing the weapon.

“What about the Robbery count? He did not take out the hypo until after he had the money. In fact, the kids gave him the money”

The hypo was used as he was trying to “escape” with the money. That makes it part of the robbery. The fact that the kids gave him the money otherwise brings up an interesting issue.

First of all, they did not simply give him a gift, they hired him to do a job. He did not do the job. Therefore, under usual circumstances, they were entitled for their money back. However, the law renders an illegal contract (which this was, oral though it was) null and void. Therefore, I suppose an argument could be made that the law could not force the Defendant to give the money back.

Of course, that has more to do with civil litigation and if the Defendant were suing to enforce the contract. These are not the facts here. Further, we are dealing with criminal law, not civil litigation.

“Can the Defendant argue he was just trying to teach the kids a lesson?”

He could, potentially. However, the law does not condone theft or the use of force for the purposes of such education…unless, of course, it is the Commonwealth doing the theft or threatening the violence.

To read the article upon which this blog was based, please go to http://bostonherald.com/news/regional/view/20220829da_t_suspect_brandished_bloody_needle_over_booze_money/

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