Drug Charge Defense Lawyer Boston|Massachusetts Drug Distribution Defense / Possession Defense Attorney
Boston Drug Charge Defense Lawyer Steven J. Topazio
In most drug charges cases, your defense will depend in part on challenging law enforcement's search and seizure of drugs or paraphernalia. Drug convictions usually depend on the prosecutor's ability to use physical evidence to demonstrate criminal activity. Boston Drug Charge Defense Lawyer Steven J. Topazio will investigate the search of your person, car or home and challenge any evidence illegally obtained against you. Attorney Topazio has proven success handling search warrant issues and complex wiretap evidence, and knows how to argue successfully for the suppression of illegally obtained evidence.
Why Hire a Massachusetts Drug Charge / Possession Defense Attorney?
An experienced Massachusetts Drug Charge / Possession Defense Attorney understands the law governing search and seizure. A police officer is only allowed to search your person or your private property if the officer has probable cause -a reasonable belief that a crime has been committed or is about to be committed. Without probable cause or consent from the person to be searched, generally searches and seizures are illegal.
Boston Drug Possession Charge Defense Lawyer Steven J. Topazio challenges evidence in drug cases. Experienced criminal defense lawyers know that attacking the evidence through a Motion to Suppress when drugs are illegally seized may be the best way to fight the case. Attorney Topazio has successfully challenged the tactics employed by the police when the evidence seized violated the rights of the accused.
Protect Your Right to Drive
A conviction of any drug crime, including simple possession of marijuana, results in a loss of a Massachusetts Drivers License. The length of loss of license depends on the class of drug involved and the seriousness of the crime. A qualified Boston Drug Possession Defense Attorney will know what can be done to avoid a license loss. If you need the assistance of a criminal defense attorney experienced in defending his clients' Fourth Amendment rights. Contact Attorney Steven J. Topazio for a free consultation and case evaluation.
Marijuana Possession
As of January 2, 2009, Massachusetts decriminalized (but did not legalize) possession of one ounce or less of marihuana or tetrahydrocannabinol (THC). THC is the major active ingredient both of marihuana (a Class D substance) and hashish (a Class C substance). G.L. c. 94C, §§ 31, 32L & 34. New G.L. c. 94C, §§ 32L–32N together provide for a $100 civil penalty for possession of one ounce or less of marihuana or THC, using the existing citation procedures found in G.L. c. 40, § 21D. Police may issue a civil citation to the violator, who within 21 days must then either (1) pay the $100 civil penalty to the city or town clerk or (2) send a request to the clerk-magistrate for a civil hearing before a magistrate or judge.
Know Your Rights
The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. In drug cases, the legality of the way the drugs were seized is frequently challenged. If the government violated the Constitution, the drugs cannot be used as evidence. Without evidence to prove the charges, the government may have to dismiss the case.
The quantity of drugs also plays a significant role in determining if one is simply in possession for personal use, or possessing with intent to distribute, or traffick. Other items found with the drugs such as drug paraphernalia, needles, pipes, bongs, plastic bags, rolling paper, large quantities of money, cell phones, beepers, lists of names with a dollar figure next to the name, etc. are all used by the police to convince the courts that one is selling drugs.
If you have been charged with a drug crime, Boston criminal defense attorney Steven J. Topazio can advise you whether the evidence leading to the charges may have resulted from an illegal search and seizure. Call today to discuss your options for defense.
The Penalties for Illegal Search and Seizure
To ensure that police officers respect individuals' constitutional rights, the U.S. Supreme Court provides strict penalties. If the police perform an illegal search, the evidence they obtain as a result of this search will not be allowed by the prosecutor. This means that if the police search you without probable cause, even if they find drugs, they will not be allowed to present this evidence to a jury. Illegal search and seizure is one of the strongest defenses available for any criminal matter. Boston criminal defense attorney Steven J. Topazio can help you understand your rights and remedies following an illegal search and seizure.
Drug Classifications
In Massachusetts there are 5 classifications of drugs that an individual can be accused of according to G.L. c. 94C § 31. An example of where a drug might be classified is as follows:
·Class A – Heroin
·Class B – Cocaine
·Class C - Certain narcotic prescription medications link Clonazepam, Diazepam, amphetamines, etc.
·Class D – Marijuana
·Class E - Steroids
Consequences of Conviction
A conviction of serious drug crimes involving sale or distribution can result in mandatory penalties. The following are a list of some of the penalties one can face in Massachusetts:
·14 to 27 grams of Cocaine = 3 years mandatory jail
· 28 to 99 grams of Cocaine = 5 years mandatory jail
·100 to 199 grams of Cocaine = 10 years mandatory jail
·200 grams or more of Cocaine = 15 years mandatory jail
·50lbs to 99lbs of Marijuana = 1 year mandatory jail
·100lbs to 1999lbs of Marijuana = 3 years mandatory jail
·2000lbs to 9999lbs of Marijuana = 5 years mandatory jail
·10000lbs or more of Marijuana = 10 years mandatory jail
Distribution of any drug within 1000 feet of a school zone is mandatory two (2) years in jail on and after the underlying offense.
Distribution of any drug within 100 feet of a public park or playground is a mandatory two (2) years in jail on and after the underlying offense. A qualified attorney will know the necessary requirements for what constitutes a school and how the distance is measured.
Comprehensive Investigation and Case-Building
Boston Criminal Defense Attorney Topazio is prepared to investigate every aspect of the allegations and circumstances of your case, in order to identify the right strategy and build an aggressive defense on your behalf. If you are facing charges you need an experienced criminal defense attorney who can adequately protect your rights and raise a strong defense on your behalf. Contact Boston Criminal Defense Attorney Steven J. Topazio online for a free consultation to discuss your case.
RECENT CASE DECISIONS
January 09, 2012
East Boston Division of the Boston Municipal Court
Docket # 1005CR1113
Possession Class B substance M.G.L. c. 94C § 34
The client, a 27 year old High School graduate, was arrested for possession of a class B substance, suboxone, who had defaulted several times during the course of his case, retained Attorney Topazio. Attorney Topazio realized that his client had suffered several substance abuse relapses in his fight against addiction and felt that it would be better to help his new client learn the skills to fight his addiction rather than risking that he be held in custody following a trial if he were committed. Attorney Topazio provided the names and addresses of both outpatient and inpatient substance programs to his client and helped him enroll in a substance abuse program prior to appearing in court. Today, Attorney Topazio convinced the District Attorney and the Court to place his client on a six (6) month period of pre-trial probation provided he remain drug free. Pre-trial probation is an agreement between the District Attorney and the defendant/client that occurs before a trial, plea or admission to sufficient facts; that results in a general continuance with an agreement that the case end in a dismissal. While pre-trial probation requires that the defendant be placed on either supervised or administrative probation monitored by the probation department, a successful completion results in a dismissal. A violation of pre-trial probation however does not cause the defendant/client to be surrendered and face potential jail time, which would happen if on regular probation, but rather only causes the case to be placed back on the trial docket.
Result: Case to be dismissed following term of pre-trial probation.
October 19, 2011
Chelsea District Court
Docket No: 1114CR1893, 1114CR1592
Possession of Class D Drug to Distribute c 94C § 32C
Drug Violation Near School/Park c 94C § 32J
The Client, a 20 year old, had been arrested on two separate cases, each alleging possession of marijuana with intent to distribute, and the second arrest including a school zone charge, which carries a minimum mandatory 2 year jail sentence. The client was arrested while drinking beer in a park with at least 10 other individuals, when police located a plastic sandwich bag under the table where the client was sitting. The sandwich bag contained multiple smaller bags of equal amounts of marijuana. Attorney Topazio utilized the services of his private investigator to determine the proximity of his client as well as the other 10 individuals with the plastic sandwich bag containing the smaller individually wrapped bags of marijuana. Attorney Topazio argued that the amount of marijuana was consistent with personal use and that since Massachusetts decriminalized (but did not legalize) possession of one ounce or less of marihuana, that his client, at the worst, might only be responsible for a civil fine for the marijuana possession. Today, Attorney Topazio convinced the commonwealth to dismiss the school zone charge and to reduce the possession with intent to distribute charges to simple possession upon a change of plea to possession only, and the court agreed.
Result: School Zone Charge dismissed and client avoids jail time upon change of plea to lesser offense of possession only.
August 30, 2011
Fitchburg District Court
1116CR0582
Possession to Distribute Class A heroin c 94C § 32(a)
Possession to Distribute Class B cocaine c 94C § 32(a)
Unlicensed Operation c 90 § 10
Speeding c 90 § 17
The client, an unlicensed seventeen year old, was stopped by State Police when observed speeding and then arrested when found in possession of heroin and cocaine, hired Boston Criminal Defense Lawyer Steven J. Topazio to represent him. State Police conducted an inventory search following the warrantless stop of the client and discovered a digital scale with white powder residue believed to be cocaine on it in the car, and one glass measuring cup also containing a white powder residue believed to be cocaine, as well as multiple cell phones. After being read his Miranda rights, the client admitted to having three ½ gram bags of heroin and ten bags of cocaine in a package concealed in his butt cheeks and a large sum of US currency on his person. The client further made statements as to what price the narcotics sold for on the street. Attorney Topazio met with the Assistant District Attorney in an attempt to negotiate a resolution of the drug charges despite the overwhelming evidence against his client. Attorney Topazio argued that the charges should be reduced to possession only, which the prosecutor refused. Today, despite the prosecutor’s request for a guilty conviction and committed time on a tender of a plea to the court, Attorney Topazio convinced the court to give his client a continuance without a finding “CWOF” on the possession with intent to distribute counts with administrative probation, and to dismiss the motor vehicle violations. A CWOF on the drug offenses prevented his client from becoming a convicted felon and further prevented his client from having his driving privileges being suspended for a period of two years.
Result: Client avoids a conviction and jail time upon court’s acceptance of his plea to a CWOF and further preserves his driving privileges.
June 15, 2011
Haverhill District Court
1038CR1266; 1038CR2975; 1138CR0995
Distribution Class B, Subsequent Offense c. 94C § 32A(b)
Drug Violation Near School Park c. 94C § 32J
Operation after Suspension, Subsequent c. 90 § 23
Leaving the Scene of Property Damage c. 90 § 24(2)(a)
Reckless Operation c. 90 § 24(2)(a)
Failure to Stop for Police c. 90 § 25
The defendant, who was arrested after being set up by a so called confidential informant who allegedly purchased cocaine from the defendant, hired Attorney Topazio to represent him. Distribution of a Class B substance, subsequent offense is an indictable offence which carries mandatory state prison time. Attorney Topazio prepared pretrial motions to discover the identity of the informant in the case and to suppress evidence. Attorney Topazio argued that the identity of an informant is required when that person acts as a participant in and an eyewitness to an offense. The Commonwealth resisted the efforts of Attorney Topazio to force the disclosure of the informant, but indicated it would do so if ordered by the court. As a compromise, Attorney Topazio was successful in getting all the charges against his client dismissed, on three separate cases, in exchange for a guilty plea to an amended complaint to a first offense of distribution of a class B substance, which sentence was suspended for six (6) months, thus avoiding mandatory jail time for his client, and the Court agreed.
Result: All charges dismissed and defendant avoids mandatory jail time upon a plea to an amended complaint to a first offense in consideration of maintaining the secrecy of the confidential informant.
June 13, 2011
Chelsea District Court
1114CR0439
Possession of Marijuana over one ounce, Subsequent Offense M.G.L. c. 94C § 34
The defendant was arrested after being found in possession of 1 ½ ounces of marijuana. As of January 2, 2009, Massachusetts decriminalized (but did not legalize) possession of one ounce or less of marihuana or tetrahydrocannabinol (THC). THC is the major active ingredient both of marihuana (a Class D substance) and hashish (a Class C substance). G.L. c. 94C, §§ 31, 32L & 34. New G.L. c. 94C, §§ 32L–32N together provide for a $100 civil penalty for possession of one ounce or less of marihuana or THC, using the existing citation procedures found in G.L. c. 40, § 21D. Despite this change in the law, and despite Attorney Topazio’s client possessing 1 ½ ounces of marijuana, Attorney Topazio convinced a court to reduce the charges against his client and continued the case without a finding “CWOF” for one (1) month to an amended complaint of a first offense. A CWOF on a drug offense avoids the collateral consequence of a license suspension by the Registry of Motor Vehicles that a guilty finding would cause.
Result: Subsequent offense dismissed upon plea to amended complaint and case continued without a finding for one month avoiding license suspension.
May 20, 2011
Norfolk Superior Court
NOCR2010-00710
Trafficking in Cocaine, M.G. L. c. 94C § 32E(b)(1)
Possession with intent to distribute cocaine M.G. L. c. 94C § 32A(a)
Possession of cocaine M.G. L. c. 94C § 34
Conspiracy to violate the controlled substance laws, M.G.L. c. 94C § 40
The defendant, a disabled plumber, was arrested for trafficking in cocaine after officers discovered two quantities of cocaine in the amount of 19.5 grams, and cash totaling over $1600.00 on his person, hired Boston Criminal Defense Lawyer Topazio to represent him. Possessing over 14 grams of cocaine, but less than 28 grams, constitutes the crime of trafficking and exposed the defendant to a minimum mandatory jail sentence of three years. Attorney Topazio obtained the police report and prepared several pretrial motions. Attorney Topazio discovered that the initial stop of his client was after he was observed by police swerving several times in his motor vehicle. When the police entered the license plate number for a check they determined that the vehicle had no inspection sticker, executed a motor vehicle stop, and then observed a crack pipe in plain view resulting in the defendant being ordered out of his vehicle. Attorney Topazio met with the Assistant District Attorney to discuss the case and pointed out that the defendant weighed 87 pounds when arrested and feared that his client would not survive due to his poor health. Attorney Topazio learned that his client had a severe crack problem which started following a gastric bypass medical procedure that was unsuccessful. That prior to his client’s unsuccessful gastric bypass procedure, his client weighed over 400 lbs. Attorney Topazio convinced the District Attorney that considering all the circumstances, including the progress his client made in his recovery, his lack of criminal record, the fact that he tried to kill himself with his drug addiction problem after his wife left him following his unsuccessful gastric bypass surgery, and the fact that his client’s own actions resulted in him punishing himself more severely than whatever the court system could ever possibly do to him; balanced against the Commonwealth’s interest in meeting out punishment and bringing defendants to justice in cases like this, caused the District Attorney to agree to a breakdown of the charges. As a result, Attorney Topazio convinced the District Attorney and the Court to dismiss the trafficking complaint on his client’s agreement to accept an 18 month suspended sentence on the balance of the indictment against his client. A dismissal of the trafficking count insured that his client would not do mandatory jail time.
Result: Trafficking charge dismissed and client avoids mandatory jail time.
April 02, 2010
Chelsea District Court
1014CR0126
Possession of Crack Cocaine, Class B MGL c. 94C, § 34
The defendant, who was represented by Attorney Topazio, appeared in the Chelsea District Court for an arraignment for the charge of possessing crack cocaine. The case against the defendant was initially dismissed without prejudice at a Jury date because the Commonwealth did not have the drug certificate of analysis. Attorney Topazio objected to the arraignment because he alleged that the court papers indicated that after the initial dismissal the defendant must receive notice of a Clerk-Magistrate’s hearing pursuant to MGL c. 218, § 35A. Because the defendant had moved, notice to her of the Magistrate’s hearing was returned to the court and Attorney Topazio argued that it was thus ineffective. The Court agreed and the case was dismissed prior to arraignment thus preserving the Defendant’s record.
Result: Case dismissed prior to arraignment.
February 11, 2010
Boston Municipal Court
0901 CR 6943
Possession with intent to distribute Class B, M.G.L. c. 94C, § 32A
The defendant, who was represented by Attorney Topazio, was summonsed to court for possession with intent to distribute a class B substance, when crack cocaine was found in his motor vehicle which was being operated by a second individual who was involved in a drug sale with an undercover officer. The second individual, who was the operator of the defendant's motor vehicle, was arrested at the scene. When an additional amount of drugs were found in the motor vehicle, the defendant was summonsed to court for the crime charged because he was the registered owner of the motor vehicle. At the defendant's arraignment, Attorney Topazio objected to his client being arraigned alleging that there was no probable cause to charge the defendant on the facts alleged, arguing that the defendant could not be in constructive possession of the drugs found, and the court agreed and requested the District Attorney to further investigate this matter and the case was continued prior to arraignment. After several court appearances, the District Attorney, after fingerprinting the drugs found in the defendant's motor vehicle, moved to dismiss the charge against the defendant prior to arraignment, thus preserving the defendant's criminal record as this criminal entry would not appear on his CORI until the defendant was arraigned.
Result: Case dismissed prior to arraignment and criminal record preserved.
December 01, 2009
Boston Municipal Court
0901CR0845
Motion to Reconsider Sentence
Possession Class B, MGL c. 94C § 34
The defendant was charged with Possession of Class B, two counts of ABPO and resisting arrest, when he was found to be in possession of aspirin which the police believed to be cocaine. Despite Attorney Topazio arguing that the substance that was found was aspirin, his client who was in custody on a probation detainer on a different case and bail on this case, decided to tender a plea. The Commonwealth argued that the substance found, on visual inspection, appeared to be cocaine and would not dismiss that charge. Attorney Topazio requested that as a condition of the original plea wanted the court to order the Commonwealth to provide him with a copy of the drug certification and to reconsider the sentence should the drugs test negative, which they subsequently did. Today, after the Commonwealth dismissed the drug charge, on the oral motion to reconsider argued by Attorney Topazio, Attorney Topazio tried to convert his client's sentence (which was a split sentence with 3 years supervised probation including the requirement of completing the Office of Community Corrections Level III program) into a time served sentence on the remaining counts, but that did not happen. Instead Attorney Topazio persuaded the court to strike the condition that his client complete OCC Level III and further caused the court to switch his client's probation form supervised to unsupervised. Community Corrections Centers are community based, intensive supervision sites, which deliver bundled sanctions and services, including treatment and education, to high risk offenders via Intermediate Sanction Levels. Intermediate Sanction Level III is an intense level of community-based, criminal justice supervision. Sanctions and services required at this level of supervision represent a daily imposition upon the liberty of the offender. Level III participants are required to report to the community corrections center for one to four hours per day, three to five days per week. Offenders placed at Intermediate Sanction Level III may be monitored via electronic device. Level III also requires random drug and alcohol testing, and attendance at one four hour community service shift per week.
Result: Guilty plea revoked after negative drug certification and probation modified from supervised to unsupervised.
October 26, 2009
Suffolk Superior Court
SUCR2007-10889
Trafficking in Cocaine M.G.L. c. 94C § 32E(b)
School Zone Violation M.G.L. c. 94C § 32J
Possessing a Firearm Without an FID Card M.G.L. c. 269 § 10(h)
Possessing a Firearm Without an FID Card M.G.L. c. 269 § 10(h)
The defendant was arrested after Massachusetts State Police executed a search warrant for his home which alleged, among other things, that the police received information from a confidential informant that the defendant was selling Cocaine from his home. During the execution of the warrant, the police found a large sum of money, cocaine, a firearm and ammunition. The defendant, who was facing mandatory jail time, hired Attorney Topazio to defend him. Attorney Topazio filed a Motion to Suppress along with a Memorandum of Law attacking the legality of the search warrant, knowing that if the search was unconstitutional, then the evidence would be excluded and the Commonwealth would have no case. Attorney Topazio argued that where information from a confidential informant is relied upon to supply probable cause to obtain a search warrant, Article 14 of the Massachusetts Declaration of Rights requires that the affidavit apprise the magistrate (who decides whether to issue the search warrant) of sufficient facts and circumstances to establish both: "(1) the basis of the informant's knowledge, and (2) the credibility of the informant or the reliability of his information. Commonwealth v. O'Day, 440 Mass. 296, 301 (2003); Commonwealth v. Upton, 394 Mass. 363 (1985); Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). In Massachusetts, the first prong, or the "basis of knowledge test," may be satisfied by evidence that "the informant had personally purchased drugs from the defendant." Such "direct knowledge" maybe inferred where the level of detail in the informant's tip regarding the identity of the seller and the drug-selling operation is "consistent with personal observation, not mere recitation of a casual rumor." The second prong, or the "veracity test," is commonly satisfied by reference in the affidavit to such factors as: the informant's successful track record of providing information to the police; the ability of the police to locate and contact the informant despite his/her anonymity in the affidavit; and the informant's recitation of "precise," "unique" and "predictive" detail. Today, Attorney Topazio convinced the District Attorney to place the trafficking charge on file, dismiss the school zone charge, and to accept a 2 year suspended sentence on the firearm's charge, and the Court agreed.
Result: School zone and possession of ammunition charges dismissed; trafficking in cocaine charge placed on file and defendant receives a two year suspended sentence on the possession of a firearm charge, thus avoiding mandatory jail time altogether.
September 16, 2009
Suffolk Superior Court
SUC2009-10329
Trafficking in Cocaine over 200 grams MGL c. 94C § 32E(b)
The defendant, who had flown to the United States from the Dominican Republic, appeared to Customs Officials to have ingested narcotics, was arrested as a drug courier when she arrived at Logan International Airport. Massachusetts State Police were called and learned that the defendant had been on a 24 hour watch list based on federal investigative information regarding the defendant possibly being a drug courier. When the defendant disembarked from her flight she was deferred to a secondary inspection station. During the secondary inspection, customs Enforcement asked the defendant several questions eliciting responses that gave rise to further suspicion of the defendant. The defendant, who appeared lethargic, was presented with a Spanish consent form regarding the use of an X-Ray in which she voluntarily signed, as officials feared that ingested narcotics had entered her bloodstream. The defendant was transferred to a local hospital where it was discovered that the defendant had ingested several items consistent with drug smuggling. Over the course of three days, the defendant passed 53 pellets containing cocaine weighing approximately 530 grams through her alimentary canal. The defendant hired Attorney Topazio to defend her. Trafficking over 200 grams of cocaine carries a punishment of a term of imprisonment in the state prison for not less than fifteen nor more than twenty years. According to statute, no sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of fifteen years and a fine of not less than fifty thousand nor more than five hundred thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment. After months of investigation and negotiations, Attorney Topazio persuaded the District Attorney to reduce the charges against his client upon a change of plea whereby his client would plea to trafficking in cocaine over 14 grams but less than twenty-eight grams and receive a sentence of 5 to 7 years incarcerated with a three year mandatory. Trafficking over Fourteen grams or more but less than twenty-eight grams, carries a punishment of a term of imprisonment in the state prison for not less than three nor more than fifteen years. According to the term of this lesser offense no sentence imposed under the provisions of this clause shall be for less than a minimum term of imprisonment of three years, and a fine of not less than two thousand five hundred nor more than twenty-five thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment. Today, despite the strength of the Commonwealth's case, Attorney Topazio negotiated a plea bargain with the District Attorney resulting in a triple breakdown of the trafficking offense thus avoiding a fifteen year mandatory jail term.
Result: Defendant receives a sentence of five to seven, three years of that being mandatory, upon a change of plea and thus avoids a mandatory fifteen year jail sentence.
July 17, 2009
South Boston District Court
0903 CR 0264
Possession with intent to Distribute Class D M.G.L. c.94C § 32C(a)
Possession class D (civil infraction) M.G.L. c.94C § 32L
The defendant was arrested after being observed by undercover police leaving a known drug house. After stopping the defendant, he was arrested after officers observed in plain view a bag of marijuana. The defendant was also in possession of a large sum of money and two cell phones. The defendant hired Attorney Topazio to defend him. Attorney Topazio met with the prosecuting attorney and through intense negotiations, convinced the Commonwealth to reduce the possession with intent to distribute class D charge to straight possession of class D, and since the amount of marijuana was not over one (1) ounce, moved to decriminalize the charge pursuant to M.G.L. c.94C § 32L whereupon the court fined the defendant $100.00.
Result: Case decriminalized and Defendant fined civilly $100.00. The defendant avoids trial, potential jail time, a criminal record, and a potential suspension of his driving privileges.
July 15, 2009
Dorchester District Court
0949 CR 0105
Possession with intent to Distribute Class D M.G.L. c.94C § 32C(a)
School Zone Violation M.G.L. c.94C § 32J
The defendant who was on probation, was arrested when his probation officer and Boston Police made a home visit to effectuate a probation warrant and observed in plain view a plastic bag filled with marijuana. The defendant who was placed under arrest for the probation warrant gave written consent to the police to search his bedroom. In addition to the marijuana the officers recovered a digital scale, numerous plastic baggies, 2 cellular phones, a passport and United States Currency. The defendant who was additionally charged with possession with intent to distribute class D in a school zone, and faced a mandatory 2 year sentence on the school zone violation if convicted, was represented by different counsel. After being committed on a probation violation for eleven (11) months, the client fired his attorney after being advised to plea to the possession with intent charge and receive a split sentence with an additional three (3) years probation, and hired Attorney Topazio to represent him. Today, Attorney Topazio convinced the District Attorney to dismiss the school zone charge as well as to reduce the possession with intent charge to straight possession on the condition that his client receive a three (3) month committed sentence concurrent with the sentence he is now serving so as not to interfere with his client’s parole date.
Result: School zone and possession with intent to distribute charges dismissed and defendant receives a three month committed sentence concurrent with the sentence he is now serving, thus avoiding additional jail time and probation once released from custody.
December 19, 2008
Boston Municipal Court
894354; 894026
Possession with Intent to Distribute Class B ch 94C § 32A
Trial de novo
The defendant was convicted on June 20, 1989 out of the Dorchester District Court docket # 8907CR4991 and received a one year committed sentence under the old trial de novo system. Under the trial de novo system a defendant could try his case before a judge without a jury and if he was not satisfied with the results he could appeal his case to the jury session for a jury trial. The trial de novo system allowed a defendant the right to try his case twice or have two bites at the apple. The defendant exercised his de novo right to appeal to the jury session and entered his appeal in the BMC Jury-of –Six session when he appeared in the BMC. The defendant however thereafter defaulted and never had his jury trial. The Commonwealth moved pursuant to M.G.L. ch. 278 § 24 to vacate the defendant’s appeal and to impose the lower court sentence when the defendant appeared in October of 2008 to remove the default. The defendant who was held on bail hired Attorney Topazio. Attorney Topazio filed a Motion to Oppose the Commonwealth’s Request to Impose Lower Court Sentence. Attorney Topazio argued that since the defendant appeared in the jury session then he entered or perfected his appeal as required by statute and that any default thereafter should be treated as a default in the normal course and not as a solid default requiring the lower court sentence to be imposed. Although the trial de novo system ended in the early 1990s, Attorney Topazio successfully utilized the case of Commonwealth v. Coughlin, 364 N.E.2d 210 (1977) which indicated that decisions to declare a defendant in default on his appeal for trial de novo, or to lift such a default, should normally be left to the discretion of the judge on the scene. Despite the Commonwealth’s opposition and demands to impose the lower court sentence, Attorney Topazio persuaded the Court as a compromise to impose the lower court sentence “nunc por tunc” as of June 20, 1989 and deem the defendant’s sentence served, effectively ending the case. The term “nunc pro tunc” is Latin meaning “now for then.” Attorney Topazio was successful in convincing the Court not to incarcerate his client but to deem that sentence served, effectively ending the case in his client’s favor.
Result: Defendant not incarcerated and case closed.
Criminal Defense
Personal Injury
OUI Penalties
Personal Injury
Criminal Defense
