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.

Articles Posted in Felonies and Violent Crimes

In short, yes. But it’s not only the gun that matters, it’s the threat. If you threaten a person with physical harm, and the person reasonably believes that you may inflict that harm, that crime is known as “assault.” Whether you point a gun, a knife, or even a closed fist at someone, if he or she fears for their safety, you may be charged with assault. That being said, pointing a gun at someone is more likely to be perceived as a real threat than shaking a closed fist would be. For this reason, an assault charge involving a gun will probably require a more complex defense than would an assault without a deadly weapon. An experienced Boston criminal defense attorney can help you determine how to proceed if you are charged with assault.

The sheer presence of a firearm is compelling evidence for the prosecution. Consider the following example: About one year ago, a Maryland police officer was convicted of first and second degree assault after he was caught on film ordering a man into his vehicle while pointing a gun at his head. Officer Jenchesky Santiago was observed shouting at William Cunningham in a way that seemed to convince both Cunningham and those who watched the video that he intended to use the gun. And the whole incident began because Cunningham was illegally parked. Not only was the officer’s response disproportionate to the very minor infraction, it was deemed an assault crime in court.

Assault vs. Assault and Battery

Assault can be a confusing charge because it is often used interchangeably with assault and battery. But battery is really a separate activity. While assault occurs when you make a threat of physical harm, battery occurs when you make good on that threat. The individual doesn’t have to be injured by the battery to constitute a charge of assault and battery. For example, if you attempt to punch someone in the face but he ducks and you only graze his cheek, you can still be charged with assault and battery. In that example, you may even be charged with assault and battery if you miss him entirely. The simple fact that you attempted to make good on your threat of physical harm is often enough.

Penalties for Assault or Assault and Battery

Not every threat is assault, however. A skilled MA defense attorney can help you protect your rights and reputation if you are facing an assault charge. If you are convicted of assault, or assault and battery, you may face the following penalties:

  • Both assault and assault and battery are punishable by a fine of up to $1,000 and up to two-and-a-half years in jail.
  • Assault that causes serious bodily injury is punishable by a fine of up to $5,000 and up to five years in prison.
  • If you cause harm to a child, you can face up to five years in prison. If that harm is substantial, you may spend up to 15 years in prison.

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Following a shooting that occurred at the South Shore Plaza earlier this month, town officials are meeting to discuss how to improve security at the mall. The meeting between South Shore’s General Manager Rick Tonzi, the town’s mayor Joseph Sullivan, and Chief of Police Paul Shastany is not the first of its kind to discuss the incident. On Wednesday, Tonzi refused to attend a meeting of the town council’s public safety committee, emailing the following statement about the policies of the mall’s owner, Simon Property Group: “Simon does not publicly comment on what we do and don’t do on security at South Shore Plaza.”

Tonzi’s failure to attend the town council meeting was met with displeasure by Town Councillor, Charles Kokoros. “I think it’s a little disrespectful to the council and the committee,” he said. The shooting, which occurred in the shoe department of the Macy’s store, is believed to be linked to Boston gang rivalries. According to investigators, previously “neutral” territories have become fair game in these gang wars.”It’s a serious incident and we’re treating it very seriously,” said Sullivan.

A statement from mall management claims that management has a good relationship with the mayor’s office and Braintree police and that it practices joint training exercises with law enforcement “to ensure that all organizations are adequately prepared in emergency response procedures.”

Town Councillors and attorneys for the mall believe that the shooting was an isolated incident that happened in the mall, but not because of the mall. Even so, it’s a grave reminder that previously “safe spaces” can become dangerous if gang activity is not kept in check. “Wherever they encounter, that’s the venue for violence,” said Shastany.

What is the Solution?

Dealing with the underlying issue of gang violence is paramount to improving safety in Boston and the surrounding areas. But this is not a problem that can be eliminated overnight. In the meantime, South Shore Plaza and similar shopping centers can take safety precautions to protect customers and the general public. Kokoros would like to see increased law enforcement presence and security cameras at South Shore Plaza, for instance. Currently, there are three police officers on duty at the mall.

And the argument for more cameras may be a good one. According to Shastany, pictures from the existing security cameras were instrumental in identifying shooting suspect Michael J. Spence. The 24-year-old Quincy man is facing firearms charges for his role in the shooting.

The Rise in Gang Violence

Fortunately, no one was injured in the South Shore Plaza shooting, but gang violence is on the rise in Boston and the surrounding areas. Consider the violent street gang, MS-13, whose motto is “Mata, viola, controla” or kill, rape, control. MS-13 is based in El Salvador and has about 30,000 members worldwide, many in the Boston area. MS-13 targets young people, often as young as 14 or 15. To become a “homeboy” the young person is told to commit a serious crime, sometimes the murder of a rival gang member. If you are worried that a child or loved one has been swept up in this kind of violence and crime, it is in your best interest to contact a MA criminal defense lawyer as soon as possible. Due to their young ages, gang members may be able to avoid jail time and the more severe penalties reserved for adults. However, without the help of a skilled Boston criminal defense attorney, violent offenders may still be tried as adults. Continue reading

On Friday, we began discussing a particular meeting in Pittsfield where law enforcement made an unfortunate declaration about gang-related violence.

It would appear that the local police department is waiving the fear-mongering flag of “gang violence” without much of a basis and is relying on the stale standard chorus of “just trust us…we don’t really have the time to be up front”.

When one looks between the lines…one sees the questionable basis.

Few people, however, look between this lines, especially when the alleged danger seems so great.  They tend to simply take the advice of law enforcement.

“Just trust us”.

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Pittsfield Police Chief Michael Wynn is sounding an all-too-familier cry.

Simply put, “The gangs are coming! The gangs are coming!”

After all, this is a time where there is a great deal of violent crime, usually gun-related, throughout the Commonwealth. Attention of late has also shifted to the alleged criminals upon who’s word the Commonwealth has depended in putting other accused individuals away. That can’t bring too much comfort to law enforcement.

But I digress.

Of course, the Chief is actually saying that the gangs are not only “coming”, but are actually here.  In fact, he has announced that this is an opinion he has held for many years, although, for some unannounced reason, he says that the department did not talk about it.

Watch the video!  I did not make it up!

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At the end of last week, the United States Attorney’s office issued a press release. The posting of it, as we have discussed in the past, as recently as last week, is apparently deemed necessary in LawenforcementLand to let us know that they are doing their job and arresting people.

Whether those people turn out to be guilty, of course, is another issue. In the meantime, of course, they will be presumed innocent…and assumed guilty.

To be fair, though, the federal prosecutor’s office generally gets the convictions that they are after.

As I recall, this was released around the same time I was getting posts on my IPhone that they were trying to find some gang member who apparently had escaped from federal custody. Yes, that would be the same office.

But I digress.

According to the release, two gentlemen from Cambridge were among 56 alleged “MS-13” gang members, leaders and associates who were taken into custody by law enforcement Friday morning.
Erick Argueta Larios, aka “Lobo,” 31, and Herzzon Sandoval, aka “Casper,” 34, both of Cambridge, had been indicted on federal racketeering conspiracy charges.
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Yesterday, we discussed the recent shooting/stabbing case which unfolded in Brookline this week.

“Yes, you were kind of mean to the nice Police Chief about his statements and the arrests.”

Do you think so?

“Yes and you left off suggesting that the way the police handled this matter put me in some kind of danger”.

So I did. I tend to find that when the authorities decide to make “urgent” and rushed arrests…before even thinking the whole matter through… the general population is put at risk.

“How so?”

In a number of ways. For example, one thing I often find when law enforcement rushes through to make arrests is that they increase the risks of getting it wrong. This is a reality to which, when mentioned, officers generally scoff. You will notice that they also seldom reconsider and admit that they might have been wrong.

Not solving a violent case correctly, as opposed to “expediently” puts us all in danger as the true culprits are often left unprosecuted. This should be apparent on its face. The flip side of this danger is something fewer people end up having to worry about.

This would be the folks who end up facing charges for things like home invasion, assault and attempted murder who shouldn’t be.

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It is a Boston violent story that is continuing to unfold. The ongoing criminal investigation apparently continues although law enforcement is already pointing fingers.

Wednesday, three men were wounded in shootings and stabbings in Brookline’s Coolidge Corner. Brookline police say that the violence was related to a home invasion.

Brookline Police Chief Daniel C. O’Leary explained that the incident began around 11:50 a.m. Wednesday when officers responded to a report a disturbance on St. Paul Street. When officers arrived, they say they found signs of a struggle in the stairs and hallway leading up to an apartment. One man, who was found with several gunshot wounds to the leg as well as a stab wound, was found and taken out of the apartment.
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Boston’s MBTA travelers have been having a rough time over the past year. First were the disasters of the Winter of 2015. This was followed by other types of problems such as a runaway train and threats of fare hikes. A couple of days ago, there was the example of another type of T Disaster.

Someone apparently got angry and began to shoot at people. Two men were hit. Thankfully, the injuries were not life threatening.

This is not to say that the shootings were simply random or the typically touted “acts of terror”. They followed a fight.

Hence the explosive anger.

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…And so our list continues.

Law enforcement has appeared at your door, interested in coming in to either look around, have a chat or both.

Now what?

I had just finished the second of five points for you to keep in mind when we left off.

Suggestion 3. Thou Shalt Not Give False Information

Whether or not you choose to carry on conversations with the investigating officers is your choice. However, that does not mean that you are free to tell them anything you want.

The law does not give you the license to lie to the investigators.

In fact, in Massachusetts, to give false information to law enforcement is to commit a felony. That felony, ironically, is called “Intimidation Of A Witness” for some reason which continues to allude me.

Sometimes, as it does with logic, the law has its own way of defining words.

However, the meaning of the law is clear. You cannot lie to law enforcement.
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In my last blog, we discussed the scene where law enforcement is banging on your door and asking to come in. Let’s assume that they have come for something other than simply a social visit or to congratulate you on being such a great citizen.

Let’s also assume that, all things being equal, you would prefer not to be part of their ongoing criminal investigation.

I am not one for giving orders, so you may wish to consider the following five items to be suggestions rather than commandments.

Rather strong suggestions:

Suggestion No.1: Thou Shall Try To Ascertain If There Is A Warrant And What It Is For

It is usually a good idea to find out if, indeed, the officers have a warrant. If they do not, then they may not have a right to bother you if you prefer they go away.
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