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

Due to the recent surge in mass shootings and the resulting gun debate, the term “stand your ground” has frequently been in the news. In stand your ground states, such as Florida and Texas, an individual can use force, without retreating, to protect himself against a threat. In these states, shooting an attacker would generally be considered within your rights if you feared for your safety. Massachusetts, however, is not a stand your ground state.

MA is a “duty to retreat” state, which means that you cannot use deadly force—even in self-defense—if you can reasonably avoid harm by retreating (such as running away). If, however, you are cornered, or otherwise unable to retreat, you are legally allowed to use deadly force if your life is threatened. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Castle Doctrine

Although MA is a duty to retreat state, that duty does not apply to home intruders. Due to a MA statute called Castle Doctrine, there is no duty to retreat when the intruder is in your home. Some states apply the Castle Doctrine to areas outside of the home, such as the driveway. In MA, when the killing takes place in the defendant’s driveway, or on a porch or outside staircase, the doctrine does not apply. Nor does it apply to invited guests, even if the guest threatens the defendant’s life. There are, however, some exceptions to this rule. For example, if an invited guest is asked to leave, pretends to leave, gets a gun from his car and comes back, his status as an invited “guest” will change to trespasser.

People are allowed—by law—to defend themselves against the threat of physical harm. In fact, many people charged with murder or another violent crime often cite self-defense as the reason for their action. However, in order for this defense to work, the defendant must be able to show that a real threat existed. A Boston defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Was Your Action Proportionate to the Threat?

In both stand your ground and duty to retreat states, the type of self defense used against an intruder must not exceed the threat. For example, if you come downstairs for a midnight snack and find an unarmed burglar in your kitchen, shooting him ten times will likely be perceived as excessive. However, if you wake up to find an intruder standing over your bed, gun in hand, you will probably be justified if you grab a gun from your nightstand and shoot him. This would also be true if it was later discovered that the intruder was wielding a fake pistol. It’s the perceived threat, not the actual threat, that matters.

If your self defense is not proportionate to the threat, this is known as imperfect self defense. No state gives you the right to attack without cause, and within each stand your ground state, a person’s right to use lethal force varies. Continue reading

With its strict gun laws, Massachusetts has one of the lowest gun-related death rates in the country. In 2014, MA tightened its restrictions even more, providing law enforcement with increased discretion to deny gun permits to “unsuitable” individuals. MA also has strict regulations about assault weapons and has long been part of a nationwide effort to prevent individuals who are deemed mentally ill from obtaining guns. In fact, according to Guns & Ammo magazine, MA has the third tightest gun control regime in the nation.

Gun control has been center stage in recent years, with mass shootings occurring across the country annually. A massacre committed by one man with automatic weapons in Las Vegas last year resulted in the death of dozens, and most recently, a deadly school shooting at a high school in Parkland, Florida has brought the debate between gun control and gun rights activists to a head.

Statistics show that states with stricter gun laws do have fewer gun deaths. In fact, firearm-related deaths in MA are 70 percent less than the national average. Further, many of the guns used in crimes in MA come from other states, including a significant percentage from Georgia and Florida.

Stiffer Penalties to Come?

Due to the increase in concern about mass shootings in the U.S., punishment for crimes involving guns is likely to keep getting stricter. If you were arrested on a gun charge, it is absolutely essential to obtain highly-skilled legal representation without delay. A Boston gun crimes defense attorney can help you determine how to proceed if you’ve been charged with any type of firearms offense.

Current Penalties for Common Gun Crimes

There are many criminal offenses associated with gun possession. Below are some of the most common charges:

  • Carrying a dangerous weapon: If you are found with a firearm in your vehicle but don’t have a permit, you may be charged with this crime. Other offenses that fall under this category include being in possession of a machine gun, sawed-off shotgun, brass knuckles, throwing stars, or nunchucks. The penalty for carrying a dangerous weapon is up to two-and-a-half years in prison.
  • Committing a felony while in possession of a firearm: If you have a gun on you while in commission of a felony, there is a mandatory minimum sentence of five years imprisonment for a first offense. For a second or subsequent offense, you will be facing a minimum of 20 years in prison. The mandatory minimum sentence will be in addition to the sentence for the underlying felony.
  • Carrying a loaded gun while intoxicated or under the influence of drugs: If you are found to be under the influence of drugs or alcohol while in possession of a loaded firearm, having a permit will not protect you from being charged. The penalty for this offense is up to two-and-a-half years in prison and a fine of up to $5,000.

A MA criminal defense attorney can help you protect your rights if you’ve been charged with any type of firearms offense. Continue reading

Arson is a criminal offense that occurs when a person intentionally and maliciously sets fire to another’s property. The term ‘property’ can refer to a house or building, but it also includes motor vehicles, and even open land.

Fires caused by arson result in hundreds of deaths and thousands of injuries annually. They destroy buildings, outdoor areas, family homes and vehicles such as cars and boats. In fact, the burning of one’s own property can also be considered arson, if done for an improper purpose. This is common when a person wishes to collect money by making a fraudulent homeowner’s insurance claim. In Massachusetts, arson is a felony.

It is estimated that the crime of arson costs about $1.4 billion in property damage every year. Statistics show that arsonists most often target poor areas and abandoned buildings. If you have been charged with arson, you may be facing serious penalties and significant time behind bars. A Boston criminal defense attorney can help you determine how to proceed.

Arson prosecutions

In order to convict someone of arson in MA, the prosecution must prove beyond a reasonable doubt the following elements:

  • The burned property had a value exceeding twenty-five ($25) dollars;
  • The property – that belonged to another person – involved real estate, or personal property;
  • The accused intended to burn the property, or caused the property to be burned, intentionally and not merely by accident.
  • The accused burned the property maliciously, meaning that there was an unlawful motive behind the act, without lawful excuse.

The hardest element for the prosecution to prove in an arson case is that a defendant was “willful and malicious” when he or she set fire to the property, or caused it to be burned. This is good to know if you are currently facing arson charges; the prosecution often struggles when trying to establish the defendant’s state of mind at the time the crime was committed (i.e. it may be extremely difficult, for example, to prove that a person using fireworks intended to burn his neighbor’s house to the ground). This is why it is so important to have knowledgeable, experienced legal counsel if you are facing arson charges. A MA defense attorney can help you protect your rights if you’ve been charged with arson.

Arson Penalties

The crime of arson carries some serious penalties. As with most crimes, however, the penalties and punishment depend on multiple factors, including prior criminal history, aggravating circumstances, and the value of the damaged property / injuries. If you are convicted of arson in Massachusetts, you may be facing the following penalties:

  • If you acted “wantonly,” (as opposed to maliciously) – a maximum of two-and-a-half years in jail, and a fine of $1,500, or three times the value of the damage, whichever is greater;
  • If your actions were willful and malicious – up to 10 years in prison, and fines of $3,000 or three times the amount of the damage caused;
  • Restitution (financial payment to victims intended to compensate for damages suffered);
  • Probation sentence of at least 12 months, and up to five years.

Continue reading

If you robbed or stole from someone while in possession of a deadly weapon, you may be facing charges for armed robbery. This is a serious crime in MA, and the penalties can be extremely harsh, up to and including life in prison. There are, however, multiple defenses against this crime. In addition, alternative sentencing options may exist in certain situations. When it comes to armed robbery, the help of an experienced MA criminal defense attorney is crucial to a favorable outcome.

The Four Elements of Armed Robbery

In order to be convicted of armed robbery, however, four elements must be proven. These are:

  • The defendant was in possession of a deadly weapon, or threatened use of a deadly weapon. Obvious examples are guns and knives, but anything can be considered a deadly weapon if it could cause serious harm. The weapon doesn’t need to have been used during the robbery. In fact, the defendant doesn’t even need to have a weapon in his possession. The threat of a weapon is enough.
  • The victim must have been physically hurt, or the defendant’s threat of harm must have made the victim fear for his safety. In addition, the defendant must have used the threat of force during the robbery.
  • The defendant must have actually taken the victim’s property, or the prosecution must show that he intended to steal it.
  • The defendant must have taken the property against the victim’s will.

As stated above, you do not need to be in possession of a weapon to be convicted of armed robbery. If the victim felt reasonably threatened that you were in possession of a weapon, you can be charged with this crime.

Penalties for Armed Robbery

Armed robbery is considered a violent crime in MA, and it carries the potential for life imprisonment. As with any criminal offense, your prior criminal history and the circumstances surrounding the crime will factor heavily in determining punishment. In MA, there is a five-year mandatory minimum sentence for many forms of armed robbery. The mandatory minimum is 15 years if you have a previous conviction.

  • The victim’s identity is also considered when determining punishment. If, for example, the victim was at least 60 years old, you are more likely to face an increased sentence of up to 20 years.
  • If the armed robbery was committed inside of the victim’s home, you may be facing up to life in prison.
  • There is a mandatory minimum sentence of five years if you wore a disguise during the robbery.
  • There is a mandatory minimum of five years if you were in possession of a gun at the time of the robbery.

One of the most effective defenses in armed robbery cases is to raise an identification issue. If the victim or witnesses are unable to confidently identify the defendant as the individual who committed the robbery, a conviction will be unlikely. That being said, a successful defense is highly dependent on the help of an experienced Boston criminal defense attorney. Continue reading

Beginning in 1996, federal law made it illegal for any person convicted of domestic abuse to purchase a firearm. But in the more than 20 years since that law passed, countless mass shootings have been perpetrated by individuals with a history of spousal abuse. Recently, a man convicted by the Air Force of beating his wife and stepson opened fire at a church in rural Texas, killing 26 people. How did Devin P. Kelley obtain an AR-15 military-style rifle after a domestic abuse conviction? According to the Air Force, his conviction was never entered into the National Criminal Information Center database.

“I am deeply disturbed — in fact, outraged — that this domestic violence conviction was apparently never reported, and what concerns me equally is the possibility that it’s only one example of non-reporting by the Department of Defense,” said Senator Richard Blumenthal, in a recent interview.

Massachusetts Laws on Guns and Domestic Violence

As of 2014, anyone convicted of a crime of domestic violence is prohibited from owning a firearm in Massachusetts. This is even true of misdemeanor convictions. In MA, domestic abuse includes any act of violence or abuse committed by one member of the household against another. Abuse includes:

  • causing or attempting to cause physical harm,
  • putting someone in fear of serious bodily harm, and
  • threatening or forcing another to have sexual relations.

And domestic abuse isn’t always physical. It can be emotional or sexual, and can even involve neglect or financial abuse. Domestic abuse crimes include:

  • assault,
  • violation of a 209A abuse prevention order (restraining order), and
  • intimidation of a witness.

What About Restraining Orders?

In MA, the issuance of a 209A abuse prevention order will automatically disqualify you from having or obtaining a License to Carry Firearms (LTC), or a Firearms Identification Card (FID). Regardless of whether the order is temporary, permanent, or an emergency order, you will have to surrender all firearms to the police. Once the order is lifted, you may be able to get your FID reinstated, and your firearms may be returned to you. A Boston criminal defense attorney can help you determine your rights if a protective order has been issued against you.

Can I Seal a Domestic Abuse Conviction?

In addition to the prohibition on buying or possessing firearms, any type of domestic violence conviction can negatively impact your ability to get a job or find housing for years into the future. In some cases, you may be able to get your conviction sealed, effectively hiding it from background checks conducted by employers and landlords. Once your record is sealed, only law enforcement agencies will have access to your criminal record. In rare cases, your sealed record may be accessed if you apply for a firearms license.

If your conviction was for a misdemeanor, you must wait five years to have your record sealed. The waiting period for a felony is 10 years. A MA defense lawyer can help you determine if you are eligible to have your criminal record for domestic violence sealed from public view. Continue reading

On Sunday, a Nevada man opened fire at a Las Vegas concert, killing 58 and wounding more than 500. Stephen Paddock used automatic weapons to shoot concertgoers from his room at the Mandalay Bay hotel. Following the massacre, police discovered .223 caliber and .308 caliber assault rifles, and other firearms that had been altered to operate as automatic weapons. Nevada had previously prohibited high-caliber automatic weapons under the 1994 Federal Assault Weapons Ban, however, that law expired more than 10 years ago.

The tragedy, which is the largest mass shooting in U.S. history, has everyone shocked, and baffled. According to his brother, Paddock wasn’t an avid gun guy. “Where the hell did he get automatic weapons,” said Eric Paddock. “He has no military background or anything like that. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Where and how Paddock obtained these automatic weapons is as yet unknown. Some were probably purchased illegally. That being said, Nevada’s gun laws are some of the most relaxed in the nation. Gun owners are not required to register their firearms, or even to be licensed. In Massachusetts, gun laws are much stricter. In fact, MA’s gun laws are some of the most comprehensive in the country. Not surprisingly, MA’s violent crime rates are among the lowest in the country.

Are Gun Laws Really So Tough?

In order to purchase or carry a firearm in Massachusetts, a prospective buyer must be fingerprinted, receive safety training, take a test, and submit to a waiting period. In addition, law enforcement is involved in the entire process.

In MA, there are five different types of firearms licenses. These are:

  • RFID – Permits an individual to carry pepper spray or mace
  • FID – Permits an individual to carry pepper spray, mace, and long rifles
  • Class B license – Permits an individual to purchase long rifles and hand guns with no more than 10 rounds (concealment is not allowed)
  • Class A license – Permits an individual to purchase any firearm in MA, and includes concealment privileges
  • The 5th license – Permits the purchase of automatic weapons (for law enforcement only)

 

If you want to purchase a gun, you must first obtain a license of ownership. In order to obtain a license, you will have to complete an application, pay applicable fees, and be interviewed and fingerprinted at the local police department. From start to finish, it takes about 30 days. By integrating law enforcement into the process, implementing waiting periods, and making the license application so rigorous, purchasing a gun in MA is not an easy task. A Boston defense lawyer can help you determine how to move forward if you’ve been charged with a gun crime.

MA is Tough on Gun Dealers

As hard as the purchasing process sounds, MA gun laws are even more rigorous for dealers. In fact, MA has the harshest gun store laws in the country. Dealers must be licensed, maintain regular communication with the state, keep detailed records, allow inspections, and follow a long list of security regulations. Continue reading

In the past, arson referred to the crime of burning someone else’s home or property while the structure was occupied. It was intended to protect the lives of anyone who happened to be inside the burning structure. However, the modern definition of arson is quite different. Today, the property being burned no longer has to be a home with people inside. It doesn’t even need to be a structure. Burning another’s land, vehicle, or other personal property without their permission is an act of arson.

To prove arson, the prosecution must be able to show that you intended to burn the property, and that you acted without permission. Intention is important, because accidentally burning someone else’s property does not constitute arson. If you purposefully set fire to a neighbor’s fields, this is arson. If the fire was accidental, it is not. In some cases, reckless behavior that results in the burning of another’s property may lead to arson charges.

You can also be charged with arson for setting fire to your own property, but only under certain circumstances. The act must be committed for fraudulent purposes. If you purposely burn down a dilapidated shed on your property, this is not arson. But if you burn down your garage to collect insurance funds, this is arson. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with arson or any other crime.

Penalties for Arson in MA

As with any crime, the penalties for arson are largely dependent on the severity of the crime, and prior criminal history. Arson can be a misdemeanor or a felony, depending on several factors. Felony arson generally involves setting fire to a home or dwelling while people are inside. If convicted of arson in MA, you may be facing:

  • Up to one year in jail, for misdemeanor offenses.
  • A prison sentence of between one and 20 years, for felony convictions.
  • Up to life in prison, if the crime was intended to kill or harm occupants of a dwelling.
  • Fines of between a few thousand dollars and fifty-thousand dollars, or more.
  • Restitution (a financial payment intended to compensate victims for any damages suffered).
  • A probation sentence of at least 12 months, and up to five years.

Section 111A of Massachusetts General Laws Chapter 266 holds that:

Anyone who intends to injure, defraud or deceive any insurance company shall be punished with a prison sentence of not more than five years, or by imprisonment in jail for not less than six months and not more than two-and-a-half years, or by a fine of at least $500 and not more than $10,000. A MA defense attorney can help you determine how to proceed if you’ve been charged with arson. Continue reading

The answer to this question is that of the answer to most legal questions, it depends. An OUI can be a misdemeanor or a felony, depending on multiple factors. Was this your first OUI or your fourth?  Was anyone injured? Were there any aggravating circumstances, such as drug possession, at the time of your arrest? Third or subsequent OUIs are considered felony offenses. In MA, convicted felons are prohibited from obtaining a gun permit or Firearm Identification Card. Read on for more information about OUIs and their impact on your ability to purchase and carry a gun.

A felony is any crime punishable by at least one year in a state prison. Even if a person’s sentence is reduced to less than one year, he or she may still be classified as a felon. Although third and subsequent OUI offenses are automatic felonies, first and second offenses can be felonies under certain circumstances. For example, if someone is seriously injured or killed in an accident because you were driving under the influence, your first OUI may be elevated to a felony conviction. A Boston criminal defense attorney can help you determine your rights to purchase or carry a gun if you were previously convicted of an OUI offense.

What About My Second Amendment Rights?

A felony conviction results in the loss of many rights, including your second amendment rights. Although the Second Amendment of the U.S. Constitution guarantees U.S. citizens the right to bear arms, it excludes those convicted of felonies. Although a felony is a surefire way to remove your right to possess a gun, there are other situations in which U.S. citizens are prohibited from purchasing or carrying firearms. These may include:

  • Anyone convicted of domestic violence, even a misdemeanor offense
  • Individuals convicted of juvenile crimes
  • Anyone with an outstanding warrant
  • Individuals residing in mental health hospitals or addiction treatment centers
  • Individuals under the age of 18 who are in the U.S. illegally

What About My Spouse?

Unless your spouse is also a convicted felon, he or she can possess a gun after your felony OUI conviction. Unfortunately, this can present a sticky situation. Let’s say your wife owns a gun and you’re a convicted felon; if she puts the gun anywhere accessible to you – including the family home – she would be in violation of the law. Further, if you were unaware that the gun was in the home and it was discovered by law enforcement, you could be charged with unlawful possession.

What are the Penalties for Gun Possession Following a Felony OUI Conviction?

In MA, unlawful possession of a firearm is punishable by a minimum of two-and-a-half years in prison, with a maximum of five years in prison. To prove unlawful possession, the following circumstances must be proven:

  • The individual was in physical possession of the firearm, and was aware that he had possession of the firearm.
  • The firearm was a revolver, pistol, or other weapon from which a bullet can be discharged.

If you were convicted of a misdemeanor OUI offense, your right to purchase or carry a gun is unlikely to be impacted. However, an application and background check will provide confirmation. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with unlawful possession of a firearm following an OUI. Continue reading

In most cases, if a landlord’s negligence leads to an unsafe condition on their property, the landlord generally won’t be held criminally liable for resulting injuries or death. However, an exception may occur if the landlord’s actions were especially egregious.

Last December, a fire killed 36 people at the Ghost Ship artist collective in Oakland, California. The space, which had been rented to artists as a living and working space, was also used for parties, similar to the dance party that was underway when the tragedy occurred.

The art collective’s manager, Derick Alamena and his assistant, Max Harris, were arrested earlier this week in connection with the deadly blaze. They are each being charged with 36 counts of involuntary manslaughter. Although it is not believed that either Alamena or Harris had anything to do with starting the fire, their egregious disregard for the safety of tenants and party-goers has elevated their actions to criminal status. A MA criminal defense lawyer can help you determine how to proceed if you’ve been charged with involuntary manslaughter.

On Tuesday, five new trauma response teams are launching in an effort to help residents of Boston’s high-crime neighborhoods cope with violence. According to Mayor Martin Walsh, this initiative was created in response to residents’ concerns. The effort, which will consist of health centers and community organizations, will be led by Walsh and the Boston Public Health Commission.

Outreach organizations will be set up in Roxbury’s Whittier Street Health Center, Jamaica Plain’s Tree of Life, the Four Corners Actions Coalition of Dorchester, and North Suffolk Mental Health of East Boston. In addition, a mobile vendor will host a 24-hour crisis hotline.

“We spent May to August of last year hosting 14 community listening sessions and heard from over 350 residents and providers,” said Catherine Fine, the Division of Violence Prevention director. “We asked them what they’d like to see in their neighborhoods following a traumatic event. And this is what we heard they wanted.”

Even when a traumatic event occurred in the distant past, teams will provide assistance if requested. “Someone may, following an event, feel like they don’t want to connect to someone,” said Fine. “And they can take support or access teams at any time, a year later, two years later.”

What is a Traumatic Event?

For the purpose of this new initiative, a traumatic event includes gun-related homicides, shootings that affect anyone under age 18 or multiple victims, and any traumatic event involving a child. According to Fine, in addition to providing assistance to victims, the initiative aims to inform residents that just because an area has a high crime rate, criminal activity doesn’t go unnoticed. A Boston defense lawyer can help you determine how to proceed if you’ve been charged with a criminal offense.

“We want community members to know the city cares,” said Fine. “We want to connect with residents to let them know there are services that are available.” Those involved with the initiative will inform the community of ongoing efforts through community meetings, door-to-door informational campaigns, and healing sessions. “The fact that we are sort of knitting together more of a system connecting these entities together is unique,” she said. “We hope it’s the start of a very positive model.”

Gang Violence in Boston Neighborhoods

Although this new initiative is aimed at helping residents cope with any type of crime-related traumatic event, much of the violent crime in the Boston area is due to gang activity. One of the most notorious gangs in Boston is the MS-13, a violent gang whose motto is “mata, viola, controla’’ — kill, rape, control.

MS-13 targets public high school students, mostly immigrants, and often recruits kids as young as 14 years old. They pull from many Boston neighborhoods, but Chelsea, East Boston, and Everett are typically hardest hit. “Mentors” assist them throughout the initiation process, which usually involves a combination of illegal drug activity, theft, rape and other forms of violent crime. A MA defense attorney can help if your child has gotten caught up in gang activity. Continue reading

Contact Information