Motions to Dismiss
- Child Rape: Prosecution withheld exculpatory evidence from the grand jury relating to the alleged victim’s motive to lie. The judge found that the prosecution withheld evidence that “significantly undermined the credibility” of the prosecution’s key witness. Indictments dismissed. Commonwealth v. B.P., Brockton Superior Court (2012)
- OUI-Liquor: The defense specifically requested that the Commonwealth preserve the Defendant’s booking video because it would contain exculpatory evidence of the Defendant’s sobriety. At trial, the defense subpoenaed the police prosecutor with instructions to bring the booking video. The police prosecutor did not respond to the subpoena and the Commonwealth could not locate the booking video. The judge found that the Defendant met his burden of proving that the booking video was exculpatory, and the Commonwealth was culpable for the video’s loss or destruction. Case dismissed. Commonwealth v. R.R., Dedham District Court (2012)
- OUI-Liquor: This was a rare case in which the judge dismissed the case with prejudice because the defense presented evidence of egregious police misconduct. The defense subpoenaed the officer who booked the Defendant for OUI because, contrary to the arresting officer’s police report, the booking officer’s report indicated that the Defendant’s eyes were not glassy or bloodshot and no odor of alcohol was detected. On the day of trial, the prosecutor stated that the booking officer could not come to court because he was “sick,” so the judge continued the trial to another date. The defense subpoenaed records showing that the booking officer was not “sick,” but worked a 12-hour shift that day. The judge was furious that the officer lied about being sick and dismissed the case with prejudice. Commonwealth v. J.L., Hingham District Court (2017)
- OUI-Drugs, Drug Possession, and Failure to Stop for Police: The client was a professional driver, he had a lot at stake in this case, and his career depended on it. The defense pushed for trial. The Commonwealth was not ready on the first trial date and the judge allowed their request for a continuance. On the second trial date, the Commonwealth was not ready and requested another continuance. The defense filed a Motion to Dismiss under Mass. R. Crim. P. 36 because the Defendant’s right to a speedy trial was violated. Case dismissed. Commonwealth v. N.B., Brockton District Court (2014)
- OUI Third Offense: The Defendant was arrested for a third-offense OUI. The defense presented evidence that the police violated the Defendant’s right to a prompt bail hearing because they kept the Defendant in custody for over 8 hours. Case dismissed. Commonwealth v. D.A., New Bedford District Court (2021)
- Indecent Assault & Battery: The Defendant was an elderly man accused of sexually assaulting a child next door. Throughout the case, the client’s mental condition deteriorated. The defense retained a forensic psychologist who conducted a review of the Defendant’s medical history, interviewed his family, and conducted a lengthy one-on-one evaluation. The expert opined that the Defendant was not competent to stand trial and there would be no chance that he would ever regain competency. Case dismissed. Commonwealth v. R.C., Brockton District Court (2017)
- Attempted Murder: The Defendant was charged with Attempted Murder for stabbing a nurse in the neck with a pen. The Defendant was held in custody in a strict hospital setting due to his mental illness. The defense met with his team of medical providers and provided the court and the prosecution with documentation relating to the severity of his mental illness. Pursuant to G.L. c. 123, §16(f), the Court dismissed the case in the “best interests of justice.” Commonwealth v. B.S., Brockton District Court (2018)
- Drugging Person for Sexual Intercourse: The Defendant was indicted for drugging a person for sexual intercourse. The victim claimed that the Defendant drugged her drink and she had no memory of sexual intercourse. The defense filed a motion to dismiss arguing that insufficient probable cause was presented to the grand jury that the defendant had drugged the victim. The motion to dismiss was allowed. Commonwealth v. John Doe, Brockton Superior Court (2024)
- Human Trafficking: The Defendant was indicted for Trafficking of a Person for Sexual Servitude. Police placed an advertisement online posing as a prostitute. The Defendant responded to the advertisement, contacted the number from the advertisement, and communicated with an undercover officer, who was posing as the prostitute. The Defendant offered the undercover officer money in exchange for sex at a hotel. The defense filed a motion to dismiss arguing that insufficient probable cause was presented to the grand jury to establish that the Defendant’s conduct violated the human-trafficking statute. The motion to dismiss was allowed. Commonwealth v. B.G., Plymouth Superior Court (2022)
- Distribution of Drugs in School Zone: The Defendant was indicted for distributing drugs to an undercover officer in a school zone. The undercover officer contacted the Defendant to purchase drugs. The Defendant got into the undercover officer’s vehicle. As the undercover officer was driving the vehicle, the Defendant handed him the drugs. The Commonwealth argued that the drug transaction occurred as the moving vehicle was traveling through a school zone. The defense argued that the Commonwealth could not establish the precise location where the Defendant handed the drugs to the officer in proximity to the school. Case dismissed. Commonwealth v. M.R., Brockton Superior Court (2014)
- Possession with Intent to Distribute: Police stopped the Defendant’s vehicle for a traffic violation. The police searched his vehicle and found seven individually wrapped baggies of cocaine, one plastic baggie containing four Oxycodone pills, and ten hypodermic needles. Although the Defendant was unemployed, he had $283 in cash. The defense filed a motion to dismiss arguing that the evidence was insufficient to establish that he possessed the drugs with the intention of distributing them and the evidence was more consistent with personal use as opposed to distribution. The judge dismissed the counts of possession with intent to distribute. Commonwealth v. A.S., Wareham District Court (2013)
- Assault & Battery Dangerous Weapon: Two victims reported to the police that the Defendant was standing in the threshold of their doorway yelling at them. When the victims attempted to close the door to end the argument, the Defendant pushed the door inward, striking both victims in the back. The defense filed a motion to dismiss arguing that the Defendant did not use the apartment door in such a way as to be a dangerous weapon capable of causing serious bodily injury. Case dismissed. Commonwealth v. K.L., Brockton District Court (2012)
- Open & Gross Lewdness: A witness reported seeing the Defendant naked from the waist down on a walking path while she was walking her dog. The police installed a trail camera on the walking path. The camera captured the Defendant walking on the path naked from the waist down on two separate occasions. The Defendant was charged with two counts of Open & Gross Lewdness for the two occasions where he was captured on the trail camera. The defense filed a motion to dismiss arguing that no crime was committed because nobody observed the Defendant’s naked from the waist down on those two occasions. In this high-profile case, the judge allowed the motion to dismiss. Commonwealth v. A.C., Hingham District Court (2016)
- Carrying a Firearm without a License: Police responded to the Defendant’s home where a family member reported that the Defendant was inside his bedroom with a gun to his head. Police located the Defendant in his bedroom. The gun was in the bedroom. The Defendant did not have a firearm license. The Defendant stated that he bought the gun on the street. The defense filed a motion to dismiss the charge of unlawful carrying of a firearm, arguing that the statute did not apply to an unlicensed person possessing a firearm within their residence. Case dismissed. Commonwealth v. D.L., Taunton District Court (2017)
- Breaking & Entering: A person called 911 to report a breaking and entering with three people fleeing from the home. It was late at night. Officers responded to the area and located the Defendant, a juvenile, walking on the street close to the burglarized home, and arrested him. The caller reported that one of the men was wearing black pants. Although the Defendant was wearing black pants and was walking close to the home that had just been burglarized, late at night, there was insufficient probable cause to establish that the Defendant was one of the three men who had broken into the home. Case dismissed. Commonwealth v. Juvenile, Brockton Juvenile Court (2015)
- Leaving the Scene of an Accident: A caller reported seeing a red pickup truck strike another vehicle at an intersection and flee the scene. The caller took photos of the vehicle, which contained its license plate. The caller followed the vehicle towards the town of Berkely and then lost sight of the vehicle. Police circulated the pictures of the vehicle to neighboring departments. The Berkely Police Department identified the vehicle as belonging to the Defendant, who had a long record of convictions for motor vehicle offenses. The police went to the Defendant’s home where they located the vehicle in his driveway. The Defendant denied that he was driving the car. The defense filed a motion to dismiss, arguing that there was insufficient evidence to establish that the Defendant was the operator of the motor vehicle. Case dismissed. Commonwealth v. J.R., Taunton District Court (2023)
- Resisting Arrest: Police responded to a call of a male party sitting in his motor vehicle “not acting right.” Officers found the Defendant sitting in his vehicle, drunk, with liquor bottles on the seat. When the Defendant was exiting the car, he stumbled, the officer grabbed his arm to prevent him from falling, and the Defendant pulled back, fought, and tried to get away from the officer. The defense filed a motion to dismiss the charge of resisting arrest because the officers were not effectuating an arrest when the Defendant resisted, and the resisting arrest statute did not apply to well-being checks. Case dismissed. Commonwealth v. J.M., Stoughton District Court (2020)
- Drug Possession: Defendant was charged with two counts of simple possession of heroin. At his arraignment, the defense requested that the Defendant be diverted into a drug treatment program under G.L. c. 111E, §10 because he qualified for pre-arraignment drug diversion as a first-time offender for simple drug possession. The Defendant was diverted into a drug treatment program, he completed the program, and the charges were dismissed prior to arraignment. Commonwealth v. J.B., Wrentham District Court (2021)
- Larceny by False Pretense: Defendant approached victim-businesses, falsely claiming to be a representative of Massasoit Community and sold them advertising space in fictitious publications. The defense filed a motion to dismiss, arguing that there was insufficient evidence to establish a necessary element of the offense, which requires proof that the victims parted with their property as a result of the Defendant’s false representations, because the victims realized that they had been swindled and cancelled their payments, so the money did not end up in the hands of the Defendant. Case dismissed. Commonwealth v. R.M., Brockton District Court (2013)
- Obtaining Drugs by Fraud: The victim went to the pharmacy to pick up a prescription only to learn that someone else had picked it up. The victim told the police the suspect was his girlfriend and identified her as the person in the CVS surveillance video. His girlfriend previously asked him if he could give her some of the medication because her doctor would not prescribe it to her. The defense filed a motion to dismiss because there was no proof that the drug was a “controlled substance,” which is an essential element. Case dismissed prior to arraignment. Commonwealth v. Jane Doe, Taunton District Court (2023)
- Trespassing: The police responded to an apartment complex for a disturbance. On scene, police encountered the disorderly defendant, who refused to leave the property, as instructed by police, and they arrested him for Trespass. The defense filed a motion to dismiss, presenting an affidavit from a resident indicating that he gave the Defendant permission to be on the property. Case dismissed prior to arraignment. Commonwealth v. A.O., Brockton District Court (2020)
- Accessory to Murder: After a mob-related murder, the hitman went to the home of the mob’s bookkeeper, the Defendant, where the Defendant assisted the hitman, after-the-fact, by providing him with cash and a getaway vehicle. The mobster was charged with murder, and the Defendant was charged with accessory after the fact to murder, but Attorney Gerald J. Noonan’s successful motion practice resulted in the Commonwealth dismissing the charge against the Defendant. Commonwealth v. G.C., Suffolk Superior Court (2005)
- Armed Home Invasion: Attorney Gerald J. Noonan was successful in dismissing an indictment for armed home invasion; arguing that the evidence presented to the grand jury was insufficient to support the elements of the offense. Commonwealth v. W.C., Middlesex Superior Court (2007)
- Rape and Sexual Assault: The Defendant was charged with the rape and sexual assault of his stepdaughter occurring over the course of several years. Attorney Gerald J. Noonan, over the Commonwealth’s objection, obtained a court order for the Commonwealth to provide a Bill of Particulars, specifying the date, time, and manner / means of the offenses, because the alleged victim waited many years to report the abuse, the timeline was vague, and the Defendant required the information to build his defense. Prior to trial, Attorney Noonan successfully moved to dismiss the indictments because the Commonwealth’s failure to provide the Bill of Particulars prejudiced the Defendant’s ability to prepare his defense. Commonwealth v. M.L., Bristol Superior Court (2005)