March 28, 2013

• Steven Topazio wrote this May 4, 2014 at 5:54 pm

The client, a 47 year college graduate, was arrested after two individuals, a boyfriend and girlfriend, reported to police that when walking through a small park in Boston when they observed the client who was standing in the shadows wearing a hood, hiding his face, approach the individuals and stick his hand in his coat and state “I don’t know you and you don’t want to know me”. Fearing they would be mugged and that the client had a weapon, the two individuals fled and were pursued by the client. Due to his lengthy record, the client was held in custody on bail. Attorney Topazio challenged the case and filed a motion to dismiss. Attorney Topazio argued that an assault may be committed in either of two ways. It is either an attempted battery or an immediately threatened battery. A battery is a harmful or an unpermitted touching of another person. So an assault can be either an attempt to use some degree of physical force on another person—for example, by throwing a punch at someone—or it can be a demonstration of an apparent intent to use immediate force on another person—for example, by coming at someone with fists flying. Attorney Topazio argued that in order to establish the first form of assault—an attempted battery—the Commonwealth must prove beyond a reasonable doubt that the defendant intended to commit a battery—that is, a harmful or an unpermitted touching—upon the complainant, took some overt step toward accomplishing that intent, and came reasonably close to doing so. In order to prove the second form of assault—an imminently threatened battery—the Commonwealth must prove beyond a reasonable doubt that the defendant intended to put the complainant in fear of an imminent battery, and engaged in some conduct toward the complainant which the complainant reasonably perceived as imminently threatening a battery. Attorney Topazio was successful in convincing the court to release his client from custody, and the case was scheduled for jury trial. Although unsuccessful at trial, Attorney Topazio was able to convince the court not to commit his client as the Commonwealth requested, but rather convinced the court to sentence his client to a term of probation.