BREAKING & ENTERING: DISMISSED
LARCENY over $250: DISMISSED

Defendant was alleged to have broken into his girlfriend’s apartment and stolen a mirror, Northface jacket, and $480 in cash. Attorney Gerald J. Noonan was able to get the criminal complaints dismissed and remanded for a clerk-magistrate’s hearing. Originally, Brockton Police sought a show cause hearing and the criminal complaint issued because the Defendant failed to appear. Attorney Noonan presented evidence that the Defendant never received notice of the show cause hearing because the summons was returned, as it was sent to an insufficient address. Because the Defendant failed to appear at the show cause hearing, Cambridge Police arrested him at his business. The Cambridge Police, however, mistakenly brought the Defendant to the Cambridge District Court for an arraignment when they were supposed to bring him to the Brockton District Court. As a result, Defendant was held in the House of Correction for three days until he was transported to the Brockton District Court (the correct court) for his arraignment. Patrick J. Noonan (then a third-year law student) filed a Memorandum of Law for the clerk-magistrate to consider in determining whether to issue the criminal complaints. With regards to the Breaking & Entering, Patrick J. Noonan argued in the Memo that the Defendant did not break into the “dwelling place of another” because he had a right to habitation and occupancy in the apartment. See Commonwealth v. Robbins, 422 Mass. 305 (1996). Specifically, Defendant paid rent, had a key to the apartment, and lived in the apartment for four-months prior to the incident. With regards to the Larceny, Attorney Noonan presented evidence that the mirror belonged to the Defendant, not the alleged victim. Specifically, Attorney Noonan presented photographs of the mirror that pre-dated the alleged incident in the custody of the Defendant. With regards to the Northface jacket, Attorney Noonan presented evidence that the Defendant purchased the Northface jacket on his credit card and provided a copy of his bank statement to the clerk-magistrate. Lastly, Attorney Noonan argued that the Defendant was a jilted lover and upset at the Defendant for breaking up with her and getting back together with his wife. Attorney Noonan presented Facebook messages (post-dating the incident) sent to the Defendant’s wife from the alleged victim where she blasts the Defendant for breaking up with her but she mentions nothing about the alleged breaking and entering and larcenies.

Result: Attorney Gerald J. Noonan convinces clerk-magistrate not to issue criminal complaints on felony charges against his client.

LARCENY BY CHECK: DISMISSED
LARCENY BY CHECK: DISMISSED

Clients owned and operated a sporting goods store and purchased merchandise from a vendor in the amount of $9,626.65. Clients wrote several checks to pay the balance. All checks were returned for insufficient funds and the balance was never paid. As a result, the clients were charged with Larceny by Check. Patrick J. Noonan (then a third-year law student) filed a Motion to Dismiss (which was denied) on venue grounds, as the events alleged to have occurred did not take place “in the vicinity” of Bristol County but in Plymouth County. See Commonwealth v. Adelson, 40 Mass. App. Ct. 585 (1996)(discussing factors in determining vicinity in larceny by check case). Patrick J. Noonan then drafted a Motion to Dismiss on the grounds that the criminal court was an improper venue to settle the dispute, as the alleged victim had an adequate remedy to recover the monies owed in a civil action and failed to do so. See Taylor v. Newton Div. of the District Court Dep’t, 416 Mass. 1006 (1993)(noting that the petitioner, who was not permitted to file applications for criminal complaint, “had a right to proceed in a civil action.”). In addition, Patrick J. Noonan argued in the Motion to Dismiss that it was an abuse of process for someone to use the criminal process to collect a civil debt. See Carroll v. Gillespie, 14 Mass. App. Ct. 12 (1982)(defendant sought to use the criminal process to collect a civil debt). Lastly, Patrick J. Noonan argued in the Motion to Dismiss that the Defendants’ did not have the intent to permanently deprive the alleged victim of the money, as they filed for bankruptcy shortly thereafter and were discharged from all debts.

Result: Attorney Gerald J. Noonan’s Motion to Dismiss was allowed and all criminal charges were dismissed against his clients.

ASSAULT & BATTERY: DISMISSED AT CLERK’S HEARING

Defendant and five other people went to the Patriots football game at Gillette Stadium in Foxboro. After the game, the members of the party got into their vehicles in the parking lot to leave the stadium. Defendant’s son was operating a vehicle with the defendant and defendant’s brother riding as passengers. The other two members of the party were traveling in a separate vehicle. Defendant’s son drove the vehicle toward the exit of the parking lot with the second vehicle following. As they were proceeding in a line of traffic toward the exit, a large SUV started to back out of a parking space and was backing into the line of cars. Defendant’s rolled down the window and told the driver of the SUV to move out of the way, as the SUV was about to back into traffic. Defendant exited the vehicle to help the SUV back out. Suddenly, the SUV backed up and struck the defendant knocking him to the ground. When he was knocked down to the ground, defendant threw his whoopee pie at the SUV and raised his arms in the air. Defendant approached the operator of the SUV and told him that he just struck him and that the defendant would like to obtain his license and registration. The operator exited the SUV and started yelling at the defendant at the top of his lungs. The male operator grabbed the defendant by the armpit and pushed him backwards, still screaming at him. As the male operator was assaulting the defendant, he knocked him into a female party – belonging to the male operator’s group. The male operator yelled at the defendant, “You just hit a woman!” Defendant replied, “If I did hit somebody, I am sorry, I didn’t mean to.” The male operator pressed his elbow into defendant’s neck and pressed him up against a light post. The other men in the SUV converged on the defendant, threw him to the ground, and they all started to punch him. The members of the defendant’s party tried to intercede but they were assaulted by the other males. The SUV then sped off. Stadium security and city police were called to the scene where the SUV party claimed that the defendant hit the female in the face. The officers immediately placed the defendant under arrest for Assault & Battery on the woman without hearing the defendant’s version of events.

Result: At defendant’s arraignment, Attorney Gerald J. Noonan filed a Motion to Dismiss on the basis that the defendant was denied his opportunity to have a Show Cause Hearing. The criminal complaint was dismissed, and a Show Cause Hearing was held. At the Show Cause Hearing, Attorney Gerald J. Noonan presented the defendant’s version of the incident, e.g., that defendant was struck by the SUV, that defendant was assaulted and injured by the group of males in the SUV, and that the defendant inadvertently struck the female party in the course of the assault on him. After hearing, Attorney Gerald J. Noonan convinced the clerk-magistrate not to issue the criminal complaint against his client.