Ianello & Brittain P.C. located in Western Massachusetts, with offices in Springfield, represent you in personal injury and criminal cases.
Friday, December 18, 2009
911 Call Admitted Into Evidence
The court recently outlined the factors necessary for a 911 recording to be admitted into evidence primarily in domestic disputes against a defendant at trial. This is particularly important because when the victim has made a 911 call that qualifies under the various factors, the Defendant can be convicted based upon a 911 recording and statements to the police even if the victim does not testify.
Tuesday, December 15, 2009
Objective Standards Must Be Used In Issuing and Extending Restraining Orders
A restraining order under Massachusetts law may be issued to a family or household member on one of three grounds:
1. Attempting to cause or causing physical harm;
2. Placing another in fear of imminent serious physical harm; or
3. Causing another to engage involuntarily in sexual relations by force, threat, or duress.
Most of the applications under M.G.L. c. 209A §1 for restraining orders are based on the first two reasons. Most common is the second, relative to fear of imminent serious physical harm. The judges today tend to err on the side of caution. In other words, they stretch the law to make it apply in order to issue a restraining order at the first stage of the proceedings (which is ex parte, meaning the Defendant is not notified and has no opportunity to be heard). There are also well-trained advocates who work for the courts who are well versed in the language needed to establish the basics for requesting a restraining order.
The court has now indicated that when a sufficient time has passed, usually a one-year period, the court must determine whether an apprehension of anticipated physical force is reasonable. A court will look to the actions and words of the Defendant in light of the attendant circumstances. This is so because a “reasonable fear of imminent serious physical harm” is determined by an objective standard. The complainant’s fears “must be more than subjective and unspecified: viewed objectively, the plaintiff’s apprehension that force may be used must be reasonable.”
When there is an application for an extension, a judge has wide discretion, but no presumption arises from the fact that a prior order had been issued. The Plaintiff must establish that the facts that exist at the time the extension is sought justify relief.
Another important issue that was decided is that when an extension request is made, the judge is not limited to issuance of a permanent injunction or not. The statute permits extensions for such additional time as the judge deems necessary to protect the Plaintiff from abuse.
Persistent behavior by a Defendant would be required for most if not all extension orders. Therefore, if the abuse has stopped and there has been full compliance with the original order, the chances are greatly reduced that a new order would be extended for any period of time. Smith v. Jones, 75 Mass. App. Ct. 540 (2009) citing Commonwealth v .Gordon, 407 Mass. 340, 349 (1990) and Iamele v. Asselin, 444 Mass. 734, 737 (2005) and Vittone v. Claremont, 64 Mass. App. Ct. 479, 486 (2005) and Carol v. Kartell56 Mass. App. Ct. 83, 86–87 (2002)
1. Attempting to cause or causing physical harm;
2. Placing another in fear of imminent serious physical harm; or
3. Causing another to engage involuntarily in sexual relations by force, threat, or duress.
Most of the applications under M.G.L. c. 209A §1 for restraining orders are based on the first two reasons. Most common is the second, relative to fear of imminent serious physical harm. The judges today tend to err on the side of caution. In other words, they stretch the law to make it apply in order to issue a restraining order at the first stage of the proceedings (which is ex parte, meaning the Defendant is not notified and has no opportunity to be heard). There are also well-trained advocates who work for the courts who are well versed in the language needed to establish the basics for requesting a restraining order.
The court has now indicated that when a sufficient time has passed, usually a one-year period, the court must determine whether an apprehension of anticipated physical force is reasonable. A court will look to the actions and words of the Defendant in light of the attendant circumstances. This is so because a “reasonable fear of imminent serious physical harm” is determined by an objective standard. The complainant’s fears “must be more than subjective and unspecified: viewed objectively, the plaintiff’s apprehension that force may be used must be reasonable.”
When there is an application for an extension, a judge has wide discretion, but no presumption arises from the fact that a prior order had been issued. The Plaintiff must establish that the facts that exist at the time the extension is sought justify relief.
Another important issue that was decided is that when an extension request is made, the judge is not limited to issuance of a permanent injunction or not. The statute permits extensions for such additional time as the judge deems necessary to protect the Plaintiff from abuse.
Persistent behavior by a Defendant would be required for most if not all extension orders. Therefore, if the abuse has stopped and there has been full compliance with the original order, the chances are greatly reduced that a new order would be extended for any period of time. Smith v. Jones, 75 Mass. App. Ct. 540 (2009) citing Commonwealth v .Gordon, 407 Mass. 340, 349 (1990) and Iamele v. Asselin, 444 Mass. 734, 737 (2005) and Vittone v. Claremont, 64 Mass. App. Ct. 479, 486 (2005) and Carol v. Kartell56 Mass. App. Ct. 83, 86–87 (2002)
Thursday, December 10, 2009
Failure to Pay Accrued Vacation Time Pursuant to M.G.L. c. 149, §148
Once accumulated vacation time has been earned according to a company’s vacation pay policy it becomes due under the definition of wages and, therefore, constitutes wages earned. An employee had accumulated five weeks of vacation time which could be used during the following calendar year. Prior to his involuntary discharge on April 8, 2005, the employee had only used one day. His employer refused to pay what he had earned the previous year. The employer produced a company policy manual which provided that if an employee leaves employment voluntarily he or she will forfeit all unused vacation pay. The court reasoned that the policy manual of forfeiture was in direct contravention to the laws as set forth in Massachusetts General Laws Chapter 149, section 148, and the employer was ordered to pay the vacation time owed with penalties.
In this case the Attorney General handled the case. In a case handled by a private attorney with permission from the Attorney General, an employee may receive up to three times the amount owed under the statute together with payment of attorney’s fees and costs, thus free legal help for an employee who is owed wages or benefits.
In this case the Attorney General handled the case. In a case handled by a private attorney with permission from the Attorney General, an employee may receive up to three times the amount owed under the statute together with payment of attorney’s fees and costs, thus free legal help for an employee who is owed wages or benefits.
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