Home Invasion

The Crime of Home Invasion In Massachusetts

What Is Considered A Home Invasion In Massachusetts?
The crime of home invasion is defined in Massachusetts General Laws Chapter 265 Section 18C. There are four elements that must be proven beyond a reasonable doubt before a defendant can be convicted of this offense.

First, the prosecutor must prove that the defendant entered another’s dwelling place unlawfully. In this context, “entering” means entering without consent. The defendant is considered to have entered, even if he only places his hand or foot into the dwelling place unlawfully. A “dwelling place” is a place in which people live or reside. Places such as hotels, hospitals, dormitories and even barns are considered “dwelling places.” Generally, any place where persons sleep is considered a “dwelling place.” A defendant enters “unlawfully” if he has no right to enter.

Second, the prosecutor is required to prove that the defendant either knew or had a reason to know that someone was inside of the building. Alternatively, this element can be satisfied if it is proven that the defendant stayed inside of the building after he found out that someone was home. If the defendant entered the building for any innocent reason (i.e. by accident), this element is not satisfied. The defendant’s knowledge may be proven by his actions or words and the inferences drawn from them.

Third, the prosecutor has to prove that the defendant was armed with a dangerous weapon when he entered the building. Common dangerous weapons are guns, knives, and brass knuckles. Additionally, many seemingly harmless items can become dangerous weapons when they are used in dangerous manners. Even pencils, lighted cigarettes and shoes can be considered dangerous weapons when they are used in ways that could inflict serious bodily injury or cause death.

Lastly, the prosecutor has the burden of proving that the defendant used or threatened force against a person in the building.

What Is The Difference Between A Home Invasion And A Breaking And Entering?
The major distinction between these crimes is that with a home invasion—someone was home during the commission of the breaking and entering and the defendant had reason to know that someone would be home. Thus, if a defendant broke into a house or apartment during the night then the jury could infer that the defendant should have known that someone would be home. Depending on the case, a jury can rely on reasonable inferences in deciding whether the District Attorney satisfied this element of the crime.

What Are Some Defenses That Can Be Raised To Defend This Crime?
Obviously, every case is different. However, after examining the facts of a particular case an experienced attorney must determine whether to raise a defense of misidentification, alibi [I was not there] or that the District Attorney failed to prove its case beyond a reasonable doubt.

What Are The Potential Sentences If Convicted Of This Crime?
Home invasion is a felony which means that if convicted of this crime a defendant will be sentenced to state prison as opposed to a house of correction. In Massachusetts the state prisons are M.C.I. Walpole [Walpole], M. C.I. Norfolk [Norfolk], Souza Baranowski Corretional Center, M.C.I. Shirley [Shirley] and Bridgewater. If you are convicted of home invasion, you will be punished by at least 20 years in prison.

Burglary vs. Robbery

Robbery vs Burglary

The crimes of robbery and burglary often go together. They are both forms of theft, and involve the intent to take something that does not belong to you, and to take the rightful owner’s enjoyment of that item permanently. The state of Massachusetts has carefully defined essential details in classifying each.

Robbery specifically involves instances of theft whereby the perpetrator has involvement with the owner who possesses their desired item. That involvement includes the awareness of the owner that the robber wants their property. The owner is then influenced, by violence or the threat of violence, to give up their property.

Burglary does not inherently involve the owner of the property that is being stolen. Instead, burglaries involve unlawful entry. At the time the burglar enters the property that he is breaking into, if he intends to commit a crime, then the burglary has been done. This is why burglary is normally part of a two-crime charge. It can be burglary and theft or burglary and assault or many other combinations. The burglary part only has to do with the breaking in and the intent to commit the crime.

Examples of Robbery and Burglary

Robbery, as defined above, can include purse snatching, carjacking, and holding up a local convenience store. These all include the confrontation with the rightful owner, as well as the violence or threat of violence.

For burglary, it is any act of unlawfully entering a premises with the intent to commit a crime. Opening an unlocked door to a home and stealing artwork from the wall would constitute burglary. Also, breaking into an empty house and stealing renovation supplies or builder’s tools would also satisfy requirements for a burglary.

Punishments for Robbery and Burglary

Due to the more serious crimes of robbery and burglary, where there are other people and other premises being involved, it is not surprising that these charges carry some pretty severe punishments, if convicted. Massachusetts state laws provide for the following sentencing guidelines:

With robbery, an unarmed robbery conviction carries a jail sentence that cannot exceed 10 years. With armed robbery, there is a minimum sentence of 5 years in state prison, also with a maximum sentence of 10 years. If that person has a previous record, however, the minimum becomes 15 years.

Burglary, if unarmed has similar sentencing to robbery. Ten years is the maximum. For armed burglary, the minimum is 8 years, but for a repeat armed burglar, the minimum sentence is 15 years that can be even higher with other factors.

Defenses for Robbery and Burglary

With such serious charges that carry such severe punishments, it is imperative to get the most help in formulating a strategy to defend the facts against a conviction. An experienced criminal defense attorney knows how to assess the case and determine what provides the best options for the client under Massachusetts law.

Sometimes it is possible to refute the intent claim, which is an essential part of proving guilt of either of these charges. Other times it may be the methodology used to gather evidence, or conflicting testimonies given during trial. In other cases, the attorney may determine strong cases that can be raised for plea bargaining to give opportunity to accept some responsibility and benefit from a reduced sentence.


Massachusetts Burglary Laws and Penalties

The laws of Massachusetts are complex and can be confusing. The exact charge and penalty you face depends on the facts of your case. There are several different burglary laws:

Burglary Laws, Defined

Burglary is defined as breaking and entering a home of another in the nighttime with the intent of committing a felony.

It doesn’t matter if the felony is actually committed or not, merely that you (allegedly) intend to do so. Usually, this felony is theft.

Burglary Penalties

If you are accused of burglary, you will face felony charges which under the statute have a maximum of up to 20 years in prison. If you are accused of a second or greater offense, you will face no less than 5 years in prison as a minimum.

Armed Burglary or Burglary with Assault

If you burgle a home and the home is occupied, you face even harsher penalties. If you do so with a weapon, you will face a mandatory minimum sentence of no less than 15 years for a first offense. If you do not have a weapon but make an assault on someone occupying the residence, you will face a minimum of 10 years for a first offense.

Prior convictions will only serve to increase the mandatory minimum sentence you are subject to. Similarly, if this isn’t your first offense, the law prevents you from serving probation in lieu of prison time.

There are many variables to consider when facing burglary charges. We can help you understand the charges you face and what they might mean for your future. Having represented numerous clients in the criminal courts of Massachusetts, we can work to aggressively defend you as well.

Contact our offices today to discuss your charges and how we might be able to help.


Arson and Burning of Property.

The word “Arson” is actually a broad term that covers several specific criminal actions/charges, the two most common of which are Burning Personal Property and Burning Insured Property. These two most frequent charges are similar in many ways.


Arson is the crime of burning a building that is a dwelling or next to a dwelling.  A “dwelling” is a house, or another building such as an apartment house, hotel, boarding house, dormitory, hospital, or other building where people live or reside. It is not necessary that the building be occupied at the time of the fire.  Also, it does not matter if you own the building or not.

There are two ways Arson can be proved.

In the first method, the Commonwealth must prove three elements beyond a reasonable doubt:

  • First, that you set fire to, burned or caused a building to be burned;
  • Second, that the building was a dwelling house, a building adjoining or adjacent to a dwelling house, or a building whose burning resulted in a dwelling house being burned; and
  • Third, that you acted willfully and maliciously.

In the second method, the Commonwealth must prove beyond a reasonable doubt that:

  • First, you intentionally aided, counseled or procured;
  • Second, a burning;
  • Third, of a dwelling house, a building adjoining or adjacent to a dwelling house, or a building whose burning resulted in a dwelling house being burned.

Burning Personal Property.

Burning Personal Property is an offense closely related to arson.  In order to prove you guilty of Burning Personal Property, the Commonwealth must prove, beyond a reasonable doubt, that:

  • First, you set fire to/attempted to set fire to/counseled or procured the burning of property that belonged to you or someone else;
  • Second, the property in question was worth more than $25;
  • Third, you did so willfully; and
  • Fourth, you did so maliciously.

Burning Insured Property.

Like Burning Personal Property, Burning Insured Property is related to arson.  It involves the intent to collect insurance proceeds. In order to prove you guilty of Burning Insured Property, the Commonwealth must prove, beyond a reasonable doubt, that:

  • First, you set fire to, attempted to set fire to, counseled or procured, the burning of property that belonged to you or someone else;
  • Second, the property was insured against loss or damage by fire; and
  • Third, you acted with the specific intent to defraud the insurer.

Willful and Malicious.

“Willfully” means intentionally, so this eliminates accidental or negligent burnings. However, a person who negligently ignites fire and then makes no attempt to extinguish or report it may be found to have acted willfully.

“Maliciously” means with ill will against someone.

Healthcare Fraud

Healthcare & Medicare Fraud Laws & Charges

Making fraudulent claims for medical care and services is a growing problem nationwide in the Healthcare industry. This white collar crime is very common and it is not victimless. People everywhere end up paying more for healthcare products and services because of Healthcare & Medicare Fraud. When this type of fraud occurs, the companies that lose money to fraudulent claims merely raise their rates to their subscribers to recover their losses.

Healthcare & Medicare Fraud

When someone files a fake claim for services or products that were never delivered and they expect to receive compensation for those claims, it constitutes fraud according to state and federal law. Unfortunately, this is a growing problem nationwide, to the tune of up to $250 billion yearly. The people involved in this type of fraud are not just health care providers; individual consumers who file false claims to obtain payments also participate in this criminal activity.

The incidences of Healthcare & Medicare Fraud are skyrocketing, despite a strong effort to curtail this problem. During 2012, two agencies, the Department of Justice and the FBI, were able to recover $4.2 billion of fraudulent Medicare payments that were made. To achieve this, they had to open 1,311 new investigations that involved 2,148 defendants.

Part of the problem that allows widespread fraudulent activity to capture so much money is time. Congressional legislation requires payment within 30 days for legitimate health care insurance claims. Several agencies are entrusted with making investigations into healthcare fraud. Although the Federal Bureau of Investigation, U.S. Postal Service, and the Office of the Inspector General are excellent at tracking down fraud perpetrators, this 30 day rule usually does not give them sufficient time to perform an investigation before those claims must be paid.

Healthcare Fraud Costs

As mentioned earlier, healthcare fraud costs are generally passed along to consumers, which means everyone covered by health insurance plans or Medicare are going to pay higher premiums for healthcare products and services. It is estimated that 3 to 10 percent of the annual $2.5 trillion that is spent on health care annually is attributed to fraud.

According to a May 2012 report from the FBI, the costs related to healthcare fraud range from $75 billion to $250 billion. This means people are paying about 10% more than they should have to pay for their medical care. Since most people who are on Medicare are older, the costs of this type of fraud are even more financially painful.

Healthcare Fraud Offenses

Fraud is a criminal offense. The states and Federal government have strong laws and penalties for insurance fraud. However, with so many people involved in trying to bilk money out of healthcare insurance companies and Medicare, it is very difficult to find and charge all who are guilty of this crime.

The basic concept of healthcare fraud is that people file dishonest claims for health care services and/or products with the intent to obtain financial gain. There are many reasons why people do this, and how they accomplish their mission to defraud.

Consumer Schemes

People file false claims to obtain payments from their health insurance plan. They may design their claim in order to obtain unneeded prescriptions that they can sell on the black market and get money from that activity.

Health Practitioners

  • More common than individual fraud, with many schemes:
  • Billing insurance companies for care that was never provided
  • Filing multiple claims for the same service
  • Altering dates or descriptions of services rendered
  • Reporting incorrect diagnoses to increase reimbursement amounts
  • Using unlicensed staff
  • Giving kickbacks for referrals
  • Prescribing unneeded treatment to increase reimbursements

Insurance Fraud Laws – Criminal Charges

Many states and the federal government have Insurance Fraud Laws that classify offenses as several different types: false claims, self-referral and anti-kickback. The basic laws state that it is illegal to knowingly and willfully attempt to or succeed at executing any scheme to defraud a health care benefit program or to obtain money from that program under false claims.

Criminal charges are stiff, and depend on the details of the offense. A recent worst case, in the eyes of Federal authorities, occurred in Michigan. This involved a famous cancer doctor who lied to patients, telling them they had cancer when they did not. He benefited from claims for medical treatments that were unnecessary, prescriptions for unnecessary chemo and drugs, and more. Some of the patients suffered, including a man who lost his legs because unnecessary drugs suppressed his immune system. Another patient died from her unnecessary chemo. The doctor got away with this for years until finally caught, bilking Medicare out of $91 billion. He recently pleaded guilty to 16 counts, and faces serious jail time in addition to high fines for insurance fraud. Federal authorities want a life-in-prison sentence; the doctor still faces many additional civil lawsuits.

Healthcare Fraud Conviction & Penalties

Federal law (18 U.S. Code § 1347) allows for fines and prison time of up to 10 years upon a conviction. If the violation results in any serious bodily harm, that prison time could be extended to 20 years. If a death is the result of this type of fraud, the prison time could be a life sentence. Not knowing the law or not intending to violate the law about this offense is not an excuse.

Individual states have specific penalties for those convicted of Healthcare Fraud. For example, in Massachusetts, the penalties depend on whether the fraud is classified as a civil or criminal violation. The civil conviction demands the perpetrator pays full restitution, but fines and jail time are unlikely. A criminal healthcare fraud charge will mean serious time in prison. Medicare fraud in this state may result in a five year prison sentence, but federal penalties are longer. A conviction of defrauding Medicare or Medicaid can bring a fine of $250,000 per offense.

Criminal Defense against Fraud Charges

If you have been accused of healthcare fraud at either the state or federal level, it is important to immediately seek help from an experienced criminal defense attorney who has a strong record of success handling fraud cases. Your freedom, financial well-being and your future depend on having an attorney on your side who understands this area of law thoroughly.



Massachusetts Larceny Charges

Less than $250: Up to one year in jail and a $300 fine.

Theft of Firearm: Up to 5 years in prison and a $25,000 fine.

More than $250, felony offense: Up to 5 years in prison and a $25,000 fine or up to 2.5 years in the House of Correction if the case remains in district court.

Theft of trade secrets: Up to 5 years in prison and a $25,000 fine.

Theft from an older adult (More than $250): Up to 10 years in prison and a $50,000 fine.

Source: Massachusetts Law Ch. 266 Sec. 30 (http://www.mass.gov/legis/laws/mgl/266-30.htm)

In order to be convicted of larceny under Massachusetts law, it must be proven that you took property that was not yours and that you intended to permanently deprive the owner of the property. A physical carrying away of the property is not required – any separation of the owner’s control can be sufficient to prove larceny.

Larceny is one of the most common criminal charges filed in Massachusetts and may be either a misdemeanor or a felony.

Under Massachusetts Law, larceny offenses are typically categorized by the dollar value of the item allegedly stolen. Offenses of less than $250 are generally considered a misdemeanor but still carry the potential for serious consequences. Theft offenses of more than $250 are usually charged as a felony and can result in significant time in jail or prison as well as other serious penalties.

A misdemeanor larceny charge is punishable by up to a year in jail while a felony charge carries the threat of 5 years in prison. In handling larceny charges, a Massachusetts defense lawyer may challenge the value of the items seized or the way in which the state arrived at the dollar amount used to file criminal charges. Obviously, obtaining a reduction from felony to misdemeanor larceny can have a dramatic impact on the outcome of a case. Sometimes the state will overstate the value of the items stolen, or may attempt to group items together to arrive at a felony charge in cases where a misdemeanor charge would be more appropriate.

In other cases, the state may pile on numerous larceny charges for a crime that should be charged as a continuing course of action. In these cases, an experienced Massachusetts Criminal defense lawyer can argue for a reduction or dismissal of some of the charges. In some cases, a plea agreement may be negotiated that seeks to dismiss some of the charges. Other cases make preparing for trial the best option and a defense can be built that forces the prosecution to prove each and every count individually.

Larceny charges in Massachusetts are a serious offense. Whether you are facing a misdemeanor or felony charge, being convicted of a theft offense can have a negative impact on your long-term quality of life and can make it difficult to obtain certain jobs, join certain organizations or even rent an apartment or qualify for federal or state assistance, including student loans.



An embezzlement arrest and charge is a type of larceny charge. It involves the taking of items from the real owner. This is usually considered a “white collar” crime because it rarely involves any sort of violence. In order to be charged with embezzlement, it must be proven that a person has violated the three necessary elements of an embezzlement charge.

Charged with Embezzlement? Here’s What to Do

First, the person must have been given possession of the property while in a position of trust and confidence. Next, the property needs to have been converted in some fashion, to where it is no longer in the possession of the original owner, and is being used by the person being charged for some purpose. The last element is that it must be shown that the person has done these things with the intent to permanently deprive the owner of his property.

Embezzlement vs Larceny: Is There a Difference?

In a general sense, embezzlement and larceny are similar crimes since both involve taking items that are not yours. Each of the crimes contain three essential elements that must be satisfactorily proven for a person to be convicted. These elements are as follows:Embezzlement

  • The accused must have been in a position of trust and confidence and trusted with possession of someone else’s property
  • That person must then have converted that property for their own use, by taking it or hiding it or any other means
  • The intent of the accused must have been to permanently deprive the ownership of that property from the owner


  • The accused must have wrongfully taken an item belonging to someone else without the permission to do so
  • It is necessary that the property was then moved out of the possession of the owner and relocated to another place for the accused to have use of it.
  • The intent of the accused must be that they intended to take the property in order to take the ownership of it away from the rightful owner permanently.

In determining the differences between the two crimes, the main contrast can be found by looking at element number one in each. For embezzlement, the accused is in a position of trust and confidence with possession of the property in question. This is not the case with larceny. Larceny is committed by a person with no involvement or authority to any aspect of the property. It is a completely unlawful access and removal of the items.

Both embezzlement and larceny can be forms of theft, since both contain illegal takings.   With larceny, it is required that the property be physically moved and relocated to be possessed by the accused. This is another difference from embezzlement, because that often involves bookkeeping deception, which only involves the movement of money through the ledger book, not physically moving anything.


Some examples of these crimes can make the difference even more apparent. If you consider an employee of a grocery store, perhaps the meat department manager, we can see these contrasts sharply.

The meat department manager would be assumed to be responsible for the meat in freezer and in the freezer cases in the store. If he were to walk out of the store with two steaks in his pockets, he would have been attempting to remove those items that he was in a trusted position to oversee. That is embezzlement.

Now, suppose that same person were to walk into the next grocery store he passed. He proceeds to take two steaks from the meat case, put them in his pockets, and walk out the door. He would be charged with larceny in that case.

In both cases, the same person is walking out the door of a grocery store with two steaks in his pockets. In the second store, however, he has no duties or responsibilities for those steaks. That is what separates the two crimes.


In the state of Massachusetts, the sentencing guidelines followed for a person convicted of embezzling are the ones used for larceny. This indicates that as far as the state law is concerned, the punishments would be decided on the same grid. For values involving under $250, this would qualify as a misdemeanor, and maximum sentencing would be jail time of up to one year and a fine of up to $300.

For stolen property with a value of over $250, this becomes a felony. As with all felonies, the fines are higher and the sentences are longer. The maximum sentencing for this level is five years in a state prison and/or a fine of up to $25,000.

When federal level charges are brought against someone for these charges, they become even more severe than the state charges. These then incorporate the USSC Guidelines for sentencing, and use variables from all aspects of the case to determine the sentencing range they are to be considered against.


In defending these cases, there would not be a significant difference in how they would be defended either. Both charges involve essential elements, and there would be effort put forth to look for ways that those elements could not be satisfied. Sometimes it is intent that can be argued, and other times the permanency component is challenged.

In addition, there would be the monitoring of evidence and testimony looking for pieces that contradict, do not match, or were obtained in an unlawful manner. This can lead to evidence being cleared from the record, as well as occasional dropping of charges.

Another effective defense, when other avenues do not produce desired outcomes, is to enter into plea bargaining negotiations. These can lead to lesser crimes and smaller punishments, in terms of sentencing and fines.


Due to the initial change of possession as part of the original agreement, these kinds of crimes are usually committed in an employer/employee situation or in a relationship involving some sort of fiduciary duty to faithfully supervise someone else’s property. It normally involves the funneling of money into or out of certain accounts, but can also involve products or goods.

In contrasting the difference between state and federal charges, it is completely dependent on the crime committed. For crimes that only violate state statutes or laws, then the charges would only be brought on the state level. They would be evaluated and sentenced based on the laws established for the state of Massachusetts. For a case to involve federal charges, there must be a part of the crime that broke laws on a federal level. These are tried in federal courts and sentenced with federal guidelines. Examples of these crimes will make this more clear.

Examples of Embezzlement Charges

State violations of embezzlement would be a case where one person is babysitting for a neighbor and each week they take some money from their house. It would not have to be money. It could be DVDs or clothes or any other items. While they were babysitting, they were put in an authority position over the home, and by permanently taking items from it, they have violated all three elements of an embezzlement charge. Similarly a person working at a store or restaurant taking money from the cash register and putting into their pocket is another case of embezzlement. A waitress that takes orders and serves food but never turns in the receipt or the money is also guilty.

Violations of federal laws would involve aspects of the federal laws that are designed to oversee interstate commerce-types of activities. Any business-related crimes that involves locations in more than one state can involve this kind of interstate commerce. An accountant may be employed by a company in Vermont, and if his crime involves creating fictitious employees on the company payroll that he cashes personally, and that payroll company is in Massachusetts, he has violated these laws.

Other forms of federal violations involve anything dealing with securities, such as stocks or bonds or other investment tools. By embezzling anything involved in the stocks or investments of others, a person will absolutely be in violation of federal laws.


The punishments given for being convicted of embezzlement do vary between state and federal charges. For state charges in Massachusetts, the sentencing follows what has been established for all larceny convictions.

It is considered a felony for values under $250 that are not a firearm. For violations above $250 or that involve a firearm, the punishments can be up to five years in a state prison or up to 2 years in a jail, and a fine of up to $25,000.

Federal charges are figured using the United States Sentencing Commission (USSC) Guidelines designed to normalize sentencing across crimes and locations. They use a point based system to determine the range of possible sentences a person has to be considered for given a certain crime. There are many variables involved in determining the sentence on this sentencing table, but the sentences and fines are much steeper for federal convictions.


Armed Robbery

In Massachusetts, armed robbery is a crime that is covered by Massachusetts General Laws Chapter 265. The law states that armed robbery consists of robbing or stealing from someone while you are armed with a deadly weapon.

For you to be convicted of armed robbery in Massachusetts, the prosecution needs to prove four elements:

  1. He must prove that you were armed with a deadly weapon, which is a weapon that can jeopardize life or cause serious harm. It does not need to be designed for such purposes. It also does not matter if the weapon was actually used or when he was armed, as long as it was related to the robbery. Common deadly weapons include brass knuckles, knives and guns.

  2. He must prove that the threat was made by you to put the victim in a fearful state, or that you physically hurt the victim. The prosecutor needs to prove that the robbery or stealing of property was caused by the threat of force.

  3. He must show that you took the possession of the victim with the intent of actually stealing it. To prove this, the prosecutor needs to show that he took it against the victim’s will.

  4. The prosecutor needs to show that the taking of the property was against the will of the victim.

It is important to note that in this state, you do not have to be armed to be convicted of armed robbery. All that needs to happen is to tell the victim that you are armed. That is enough for the district attorney to charge you with this crime and convict you. The key in this type of conviction is that by just stating or implying that you have a weapon, you have created a state of fear in the victim and that is enough under the law to convict you.

Sentencing Guidelines

If you are convicted of armed robbery in Massachusetts, you could be facing life in prison. There is a minimum five year sentence in state prison for armed robbery, and the minimum is 15 years if you have a previous record.

The judge on the case does have the discretion to impose a sentence of a variety of years. However, he or she does have the option of sentencing you to life in prison.

There are a number of factors that come into play in the length of the sentence for armed robbery. These include:

  • Your prior criminal record, if any.

  • How the robbery was committed.

  • Characteristics of the victim – if the person was over 60 years of age, you can get up to 20 years in prison.

  • If you entered the victim’s home to commit armed robbery, you can be sentenced to life in prison without parole.

  • If you wore a disguise or a mask, there is a minimum five year sentence for a first offense.

  • If you were armed with a gun, there is a minimum sentence of five years.

Defenses Against Armed Robbery

Your defense will need to cast doubt upon one or more aspects of the prosecution’s case. Your attorney can do so by questioning the credibility and evidence against you. He or she also can try to suppress evidence against you. Suppressing evidence can be done if you can prove that the evidence was obtained illegally or incorrectly.

Another good way to defend you against armed robbery is to raise doubt on whether or not it was really you who committed the crime. The case of course hinges on the prosecution proving that you were the one who committed the armed robbery offense. Your lawyer may be able to get you acquitted if enough doubt can be raised on this point.

Lastly, the defense can try to undermine the case of the prosecution by bringing into question if you were really armed. If the police did a search illegally or they did not follow procedures in collecting evidence, the evidence of the weapon used might be able to be suppressed.

Breaking & Entering

Breaking and Entering involves going somewhere you do not have permission to be and intending to do some criminal act there.  If you go there, but do not have the intent to do some other criminal act, then the offense is Trespassing.

There is no such thing as straight “breaking and entering” under Massachusetts General Laws. Rather, there must be the distinguishing element of intent, such as:

  • Breaking and Entering with Intent to Commit a Misdemeanor;
  • Breaking and Entering with Intent to Commit a Felony;

as well as whether the breaking and entering was committed during the

  • Daytime; or
  • Nighttime.

The major factor in the severity of punishment for a conviction is the time of day that the breaking and entering occurred. Breaking and entering in the daytime is a lesser offense.

If you are charged with breaking and entering for felony/misdemeanor in the nighttime/daytime, you are innocent until proven guilty. In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:

  • You broke into a location/property (such as a vehicle) that belonged to another person;
  • That you entered that location/property;
  • That you did so with the intent to commit a misdemeanor or felony; and
  • That this event took place during the nighttime (if applicable);


The obvious examples of breaking-in include breaking a window, forcing open a door, or removing plank from a wall. There are also less obvious examples that are also considered “break-ins,” such as opening a closed door or window (even if unlocked), and going into a location/property through an opening (like a window) that is not intended for use as an entrance.

On the other hand, entering through an unobstructed entrance-such as an open door-is not a break-in.


Entry simply means the unlawful making of one’s way into a location/property (such as a vehicle). This means that if any party of your body-even a hand and/or foot, or any instrument/weapon controlled by you physically enters the building, you have made “entry.” Thus, if you break a storm window and reach inside between merely the storm window and inner window, your hand has made entry.

Misdemeanor or Felony.

The Commonwealth is not required to prove that you intended to commit any particular misdemeanor or felony, but it must prove that you intended to commit some felony. When a person breaks and enters in the nighttime, it is ordinarily a fair inference, in the absence of contrary evidence, that he intends to steal.

Daytime vs. Nighttime.

The law clarifies that nighttime begins one hour after sunset and continues until one hour before sunrise the next day. The Commonwealth may prove that the crime occurred in the nighttime by presenting evidence via an almanac or other reference book, or even asking jurors to rely on their common knowledge of approximately when the sun rises or sets on a particular date in a particular geographical area.

Malicious Destruction of Property

What Is Malicious Destruction Of Property In Massachusetts?

Massachusetts General Laws chapter 266, §127 prohibits malicious destruction of property. To convict a defendant of this criminal offense, the government has to prove beyond a reasonable doubt that:

  1. The defendant destroyed or injured another person’s property.
  2. The defendant did so willfully. “Willful” means intentionally. An accidental act is not a willful act. In order to be willful, a person must intend both the act and the consequences.
  3. The defendant did so maliciously. “Malicious” means “out of cruelty, hostility or revenge.” In order for an act to be “malicious,” there must be some hostility towards the property owner, though it is not required that the owner’s identity be known to the defendant.

Is This A Misdemeanor Or A Felony?

If one is charged with malicious destruction to property over $250, then the government must also prove that the property itself is worth more than $250. In other words, it is not the actual damage caused but the value of the property damaged. Malicious destruction to property over $250 is a felony in Massachusetts.

In addition to malicious destruction of property, General Laws chapter 266, §127 prohibits wanton destruction of property over $250. Destruction of property is “wanton” if done recklessly and with a conscious disregard of substantial harm to people or property. Foresight of or intent to cause the damage is not required, but mere negligence does not amount to “wanton” conduct. To be a “wanton” act, an act must be intentional and not accidental.


Malicious destruction of property over $250 is punishable by:

  • Up to ten years in the state prison
  • A fine of the greater of $3,000 or three times the value of the damaged property
  • Up to 2.5 years in jail

Malicious Destruction of Property Under $250 is Punishable by:

  • A fine of three time the value of the damage to the property
  • Up to 2.5 months imprisonment