August 16, 2010
- Steven Topazio wrote this April 27, 2014 at 10:58 am
The defendant was arrested by police after being seen fighting with another individual in the vicinity of a public park, and charged with the crime of affray. The elements of affray are (1) fighting together of two or more persons (2) in a public place, and (3) to the terror of the persons lawfully there. Attorney Topazio, who represented the defendant, filed a motion to dismiss the complaint alleging the magistrate who issued the complaint did not have probable cause to issue the complaint against his client. Attorney Topazio pointed out that in the narrative of the police report, the officer described the park as crowded with many children present. The Officer stated that due to the presence of these onlookers he arrested the defendant and the other mutual combatant. Today Attorney Topazio argued his Motion to Dismiss before the Court. Attorney Topazio pointed out that under the probable cause requirement, a complaint shall not issue unless the information presented by the complainant establishes probable cause to believe that the person against whom the complaint is sought committed an offense. Attorney Topazio argued that the evidence used to establish probable cause for the charge of affray in violation of M.G.L. c. 277 §39, relied upon by the clerk-magistrate, was insufficient as the report did not establish that any person lawfully there was put in terror. The application for complaint was based upon the report, which documents the officer’s observations. The report merely stated that the park where this happened was crowded with many people, including children, and that there were “onlookers”. Attorney Topazio argued that what is important for purposes of this charge, however, is whether the response of the “onlookers” rose not just to the level of interest (as the term “onlooker” implies) but the level of “terror”. Attorney Topazio argued that there was no indication that the officer observed anyone to be in terror or any indication in the report or application for complaint that any person was in terror. Over the commonwealth’s objection, the Court agreed with Attorney Topazio and allowed his Motion to dismiss.