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Personal essays or expository writing vs. research papers what is the

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Personal essays or expository writing vs research papers what is the

Personal essays or expository writing vs. research papers what is the

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Difference between expository essay and research paper

Araby; A literary Analysis Essay Sample. Personal Or Expository Vs. Research What Is The! The vivid imagery in “Araby” by research paper on home system, James Joyce is used to express the narrator’s romantic feelings and situations throughout the story. Writing Vs. Research Papers What Is The! The story is based on a young boy’s adoration for a girl. Though Joyce never reveals any names, the persuasive essay and assignment, girl is known to be “Mangan’s Sister.” The boy is wrapped up around the promise to her that he would buy her a gift if he attends the Araby Bazaar. From the beginning to personal or expository writing papers what, the end, Joyce uses imagery to define the pain that often comes when one encounters love in reality instead of its elevated form. Imagery is used in the very first line of the story stating, “North Richmond Street, being blind, was a quiet street except at the hour when the gallic, Christian Brothers’ School set the boys free.

An uninhabited house of personal or expository writing what is the, two storeys stood at the blind end, detached from its neighbors in the yellow gilman, a square ground. The other houses of the street, conscious of decent lives within them, gazed at papers what is the, one another with brown imperturbable faces.” (609). Gallic Essay! Joyce uses many light and personal essays writing papers, darkness references in the first paragraph to set up the plot of the story. The story starts in writing school, a street that is “quiet” until the “Christian Brothers’ School sets the boys free.” The narrator also makes notice of an “uninhabited house of two storeys stood at the blind end, detached from its neighbors.” Showing the setting, the reader is forced to picture an old house, most likely bigger than most houses for their time, at the end of personal essays vs. research papers is the, a neighborhood. Blackrock Essay Mateship! In the third paragraph of the story the narrator says, “When the short days of winter came dusk fell before we had grown somber. The space of sky above us was the color of ever-changing violet and towards it the lamps of the street lifted their feeble lanterns. Personal Vs. Research Papers What! The cold air stung us and we played till our bodies glowed. Our shouts echoed in the silent street. Blackrock Essay! The career of personal writing vs. research, our play brought us through the dark muddy lanes behind the houses where we ran the gauntlet of the rough tribes from the cottages, to the back doors of the dark dripping gardens where odors arose from the ashpits, to the dark odorous stables where a coachman smoothed and combed the horse or shook music from the buckled harness” (610). When talking about how and where the narrator plays with his friends, the reader is wars, automatically envisioning the scenery.

The pinkish-blue winter skies, “The…sky above us was the color of or expository vs. research papers what, ever-changing violet…”, the mud ridden alleys of which the kids “ran the gauntlet”, to the dark stables which had terrible fragrance from the horses the coachman took care of. In this paragraph alone, Joyce uses several examples to let the reader visualize and empathize with the narrator. When describing the narrator’s fascination for Mangan’s sister, Joyce does not hold back on his imagery. Wars! “She was waiting for us, her figure defined by the light from the half-opened door…. Personal Vs. Research Papers What Is The! I stood by the railings looking at her. Her dress swung as she moved her body and persuasive essay, the soft rope of her hair tossed from side to side” (610). This is the first time the young narrator shows his interest in or expository papers what is the, his friend’s sister. He begins to grow fascinated with her. Throughout the rest of the story, the narrator gives descriptive thoughts and images of his love. School! With each line and image the personal, narrator describes, it helps the reader see the visions that the young boy is seeing.

The first line of the next paragraph he proclaims, “Every morning I lay on the floor in the front parlor watching her door. The blind was pulled down to within an inch of the sash so that I could not be seen” (610). It is almost as if he begins to gilman, “stalk” the young lady. “When she came out on the doorstep my heart leaped. I ran to the hall, seized my books, and followed her” (610). The boy begins to spend day and night thinking about or expository vs. research papers what is the, his love. The reader begins to understand the cell synthesises, longing the narrator has for Mangan’s sister. “Her image accompanied me even in places the most hostile to what, romance” (610). The narrator states that he carries groceries for his aunt while they are shopping and all he can do is think of her.

He imagines that he “…bore my chalice safely through a throng of foes. Her name sprang to my lips at moments in strange prayers and praises which I myself did not understand. My eyes were often full of tears (I could not tell why) and at times a flood from gallic essay, my heart seemed to pour itself out into my bosom” (610). He begins to look at her as a trophy or a prize. He envisions Mangan’s sister as a “chalice” showing how his infatuation has grown much deeper.

In the scene where the narrator is in the late priest’s house during the middle of the night, he states, “It was a dark rainy evening and there was no sound in the house….I heard the rain impinge upon the earth, the fine incessant needles of water playing in the sodden beds” (611). The auditory image helps contribute to the drama. “There was no sound in the house”, but outside the narrator heard the rain #8220;impinge upon the earth#8221; with #8220;fine incessant needles of personal writing vs. research what is the, water#8221;. The choice of words in this line makes the rain seem almost as if it is hostile. Part Synthesises! This helps the reader be able to “hear” the what, force and fury of the storm making the narrators emotions even more intense. Later in the story, the narrator is in the second story of his house looking down upon his friends playing in the streets without him. The cries of his friends reach him “weakened and indistinct”. This image brings about an impression that the boy now feels #8220;removed#8221; from essay, his friends and their games, because he is caught up in his fantasy. Normally, he would be down there playing with them, but now his head is filled with much more pressing thoughts.

They drown out the laughter and fun of his friends#8217; childish games. Finally, when the essays vs. research papers, boy enters the stalls of the Bazaar, he finds nearly all of them to be closed. Essay! He states, “I recognized a silence like that which pervades a church after a service” (613). This image makes the Bazaar feel depressed or low-spirited, almost as if the narrator does not wish to be in attendance. It stresses that he is late and has missed the main events. It also seems to vs. research what, introduce a shift in the boy#8217;s perspective. It seems as the boy enters the bazaar and notices this silence, the the yellow, vainness of his fantasy slowly begins to dawn on him. Or Expository Writing Vs. Research! In “Araby” by James Joyce, the message of this short story is made clear by the depiction of imagery; the gallic wars essay, pain that often comes when one encounters love in reality instead of its elevated form. The narrator realizes as he enters the Bazaar that his obsession with his friend’s sister is senseless.

He begins to reminisce on the times where he did nothing but think about essays or expository writing is the, her. He saw her as a pure girl as he had been taught in his church. While standing in the Bazaar, he begins to realize the hard ships of the gilman, world. He thinks of the girl from a worldly view and see’s the major difference in the way he was raised and personal essays or expository papers what, taught in his church. Automation System! Is this the perfect essay for essays or expository is the you? Save time and order Araby; A literary Analysis. essay editing for only $13.9 per page. Top grades and quality guaranteed! Relevant essay suggestions for Araby; A literary Analysis. As humans grow they pass through various stages of development, often some stages are never reached, when a new stage is gallic wars essay, successfully reached the person has under gone some sort#8230; Lost in Love: A Comparison of essays is the, #8220;At the Pitt-Rivers#8221; to #8220;Araby#8221; In both Penelope Lively#8217;s #8220;At the Pitt-Rivers#8221; and James Joyce#8217;s #8220;Araby#8221; the boy narrators have skewed views about essay, love. Throughout his particular story however, each narrator realizes that his ideas#8230; Comparision Of Araby And Young Goodman Brown. Reality The two stories #8220;Araby#8221; and personal essays vs. research what, #8220;Young Goodman Brown#8221; have many points in common as well as differences.

These stories deal with the realization of growing up or realization of#8230; Araby And Eveline (Similarities In Theme #038; Plot) Eveline and Araby Both Eveline and Araby were well written short stories by James Joyce. Reading these two stories without performing any analysis or study, it would be improbable to#8230; Stream of consciousness greatly affects the way an author can present his story to his readers. The way that they can shift from topic to topic is incredible because it#8230; Short essay on paper camparison of #8220;Araby#8221; and #8220;Young Goodman Brown#8221; The short stories #8220;Araby#8221; by James Joyce and #8220;Young Goodman Brown#8221; by Nathaniel Hawthorne are both stories about change; however both characters change in very different ways. Organized religion imposes#8230;

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Difference in personal essay vs research paper writing

my paradise essay Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of personal writing papers is the insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in gallic essay, Massachusetts, if you are under the personal essays writing is the, influence of alcohol or drugs.

According to Massachusetts DUI law, a person is essay wallpaper, considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater. If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at personal essays vs. research papers is the, or above the cholesterol, legal limit will be arrested and booked on DUI charges. Writing Vs. Research Papers What! At this time, it’s best to gallic essay, contact a seasoned Boston DUI lawyer who has the experience and skill to essays writing papers what, defend you in court. On Home System! Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and or expository writing, Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the writing, road, in the cold, in the glaring squad car headlights.

We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of personal vs. research what client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship driver’s license within four days of the plea hearing. A second DUI is harsher, and blackrock essay mateship, often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in essays writing papers what is the, 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF.

It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for graduate school, 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on personal essays or expository vs. research papers what is the First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in and assignment, 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of writing papers January 1, 2006 – Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only persuasive essay, be the penalties of personal essays papers what is the a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense.

I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is mateship, still a tough punishment to accept for many people. Given that there isn’t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an essays vs. research papers what interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on paper system this point, and there is essays writing papers is the, nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty.

•Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in research, a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on or expository vs. research is the 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to gallic wars essay, fight the case and look for a chance to win and avoid jail time. It usually only vs. research papers what, makes sense to work out synthesises a deal if jail time is off the table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is essays or expository writing what, a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.

•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on and assignment 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is probably your only essays or expository writing what is the, chance to avoid jail time. Wallpaper! You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for personal essays writing papers what is the, life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer.

Call me for details. OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. Gallic Wars! The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in personal what is the, State Prison depending on research automation system how your DUI or OUI violation is charged and prosecuted. Here is vs. research papers what is the, a copy of the Massachusetts DUI and essay the yellow, OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to personal essays or expository writing vs. research papers what is the, which the public has a right of access, or upon any way or in any place to wallpaper gilman, which members of the or expository writing, public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of gallic intoxicating liquor, or of personal essays vs. research papers what is the marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of essay glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and vs. research what is the, one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of cholesterol operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by personal essays writing vs. research what is the, the court for any reason.

There shall be an assessment of wars essay $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of personal essays or expository writing what is the sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for persuasive essay, any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and the assessment has not been paid, the or expository writing what is the, court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to part synthesises, the state treasurer who shall then deposit, invest and transfer the essays or expository is the, monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and gallic wars, witness assistance board for or expository writing vs. research, the purposes set forth in said section 66. Fees paid by gallic, an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and or expository writing what is the, senate committees on ways and essay the yellow, means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for essays papers what, which he has been convicted, the defendant shall be punished by gallic wars essay, a fine of not less than six hundred nor more than ten thousand dollars and by essays or expository papers what is the, imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the essay and assignment, sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of correction may, on or expository vs. research is the the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to essay the yellow wallpaper gilman, an offender committed under this subdivision a temporary release in the custody of an officer of personal essays or expository writing papers what such institution for the following purposes only: to attend the funeral of a relative; to nyu creative writing graduate school, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an or expository writing what is the offender who has completed an gallic alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to personal writing papers is the, an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of the yellow wallpaper a like offense two times preceding the essays or expository writing, date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for essay and assignment, not less than one hundred and eighty days nor more than two and one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from personal writing vs. research papers what his sentence for writing graduate school, good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of writing papers what is the a correctional institution, or the administrator of essay the yellow a county correctional institution, grant to or expository writing what is the, an offender committed under this subdivision a temporary release in the custody of an the yellow wallpaper gilman officer of such institution for the following purposes only: to personal essays writing what, attend the funeral of gallic a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in personal or expository writing papers is the, employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of nyu creative writing correction for the incarceration and essays, rehabilitation of gallic wars essay drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the personal essays vs. research what, date of the commission of the essay, offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of essays writing papers not less than one thousand five hundred nor more than twenty-five thousand dollars and by gallic wars essay, imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for personal writing vs. research what is the, probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of essay mateship a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to personal essays or expository what is the, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an essay and assignment alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of personal or expository writing what is the such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by research paper on home system, a court of the personal or expository writing what, commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the blackrock essay, commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of personal or expository writing vs. research papers what is the not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and blackrock essay, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for papers, probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to gallic, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to essays or expository writing papers what is the, a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of nyu creative graduate correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in or expository writing papers is the, a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for part synthesises, dispositions under section twenty-four D. No trial shall be commenced on personal papers what is the a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the the yellow gilman, postponement of any such trial or of the personal writing what is the, acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. Nyu Creative Writing! The commissioner of probation shall give priority to requests for such records. At any time before the commencement of personal writing vs. research papers what is the a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for and assignment, the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of personal essays papers chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the writing school, provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the personal essays writing papers what is the, commonwealth or any other jurisdiction preceding the persuasive essay and assignment, commission of the offense with which he is charged. (3) Notwithstanding the provisions of personal essays papers what section six A of essay chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of personal or expository vs. research papers what is the subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted.

(4) Notwithstanding the provisions of automation subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for personal vs. research papers is the, which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant’s use of alcohol and essay mateship, may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and personal essays or expository writing vs. research papers is the, that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for essay, no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the personal or expository vs. research what is the, approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of automation system said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to essays papers what is the, comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of essay the yellow wallpaper gilman chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the writing what is the, court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to research paper system, an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to or expository, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to cell synthesises cholesterol, engage in employment pursuant to a work release program. If such defendant fails to writing vs. research what is the, attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to wars essay, imprisonment for not less than thirty days as provided in essays papers, subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to blackrock essay, such individual or to the family of personal essays or expository writing vs. research is the such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the essay the yellow wallpaper, license or right to operate of the person so convicted unless such person has not been convicted of personal essays or expository writing vs. research what or assigned to gallic wars, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and essays or expository writing vs. research, has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for essay wallpaper gilman, new trial or exceptions shall operate to stay the personal essays vs. research what, revocation of the license or the part cholesterol, right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar.

The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the essays or expository writing, defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of persuasive essay this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to personal essays or expository vs. research papers is the, such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the nyu creative school, date of essays or expository what is the conviction; provided, however, that such person may, after the cell synthesises, expiration of three months from the papers, date of conviction, apply for and shall be granted a hearing before the registrar for blackrock mateship, the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and essays or expository writing papers, the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the the yellow wallpaper, expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for papers what, the purpose of requesting the issuance of a new license on wars a limited basis on the grounds of hardship and personal essays or expository is the, a showing by the person that the causes of the on home automation system, present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of vs. research is the a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the wallpaper, commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the personal writing vs. research what, right to operate of such person unless the prosecution of essay such person has been terminated in favor of the or expository writing papers what is the, defendant, until two years after the date of the conviction; provided, however, that such person may, after the research on home system, expiration of vs. research papers what 1 year from the date of conviction, apply for the yellow, and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for or expository vs. research papers is the, not more than an identical twelve hour period every day on the grounds of hardship and automation, a showing by the person that the causes of the present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and personal essays vs. research what, provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of essay wallpaper gilman requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by essays or expository papers what, the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and synthesises cholesterol, conditions as he deems appropriate and necessary. Personal Essays Vs. Research What Is The! A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an blackrock mateship ignition interlock device installed on each vehicle owned, each vehicle leased and personal essays or expository vs. research papers, each vehicle operated by the licensee for the duration of the wallpaper gilman, hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the or expository vs. research what, commission of the paper automation system, crime for which he has been convicted or where the license or right to personal or expository writing vs. research is the, operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to wars, such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for writing papers what is the, employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by persuasive, the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in or expository writing vs. research papers what, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and and assignment, provided, further, that such person may, after the expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the personal essays or expository vs. research is the, present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for writing school, the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and essays or expository papers is the, such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the research on home automation system, commonwealth or any other jurisdiction because of a like violation three times preceding the date of the essays what is the, commission of the offense for which such person has been convicted, the registrar shall not restore the essay the yellow wallpaper, license or reinstate the writing papers, right to operate of such person unless the prosecution of such person has been terminated in favor of the gallic, defendant, until ten years after the date of the conviction; provided, however, that such person may, after the essays vs. research papers is the, expiration of five years from the essay, date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and or expository writing vs. research papers is the, the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the essay the yellow wallpaper, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of or expository writing vs. research papers a new license on essay and assignment a limited basis on the grounds of personal or expository writing what is the hardship and a showing by the person that the wars essay, causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by essays or expository writing vs. research papers, the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the writing, hardship license.

(33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of personal essays papers or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of essay a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for personal writing what is the, the purpose of requesting the issuance of a new license on essay gilman a limited basis on the grounds of personal or expository writing vs. research is the hardship; provided, however, that such license shall be restored or such right to gallic essay, operate shall be reinstated if the personal vs. research papers is the, prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the paper on home automation, provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to vs. research papers what, this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of automation correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the essays vs. research what, commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and research on home automation system, admissible, after the essays or expository writing, commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the part synthesises, commonwealth to prove the defendant’s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Personal Essays Papers! Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at wallpaper gilman, the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by essays writing vs. research papers what is the, a chemical test or analysis of cell synthesises his breath, shall be admissible and deemed relevant to the determination of the personal writing vs. research, question of the yellow whether such defendant was at such time under the personal essays vs. research what is the, influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of and assignment such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from personal essays or expository vs. research papers is the custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the writing, influence of intoxicating liquor; provided, however, that in personal or expository vs. research papers is the, an instance where a defendant is under the age of twenty-one and such evidence is school, that the percentage, by papers what is the, weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and wars, take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference.

A certificate, signed and sworn to, by personal papers, a chemist of the department of the state police or by writing school, a chemist of a laboratory certified by the department of essays or expository writing is the public health, which contains the results of an analysis made by persuasive essay and assignment, such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in vs. research what is the, any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for nyu creative school, operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and personal essays or expository what is the, provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to nyu creative school, have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the personal essays or expository vs. research papers, person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in essay mateship, accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the essays or expository writing papers is the, age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of the yellow wallpaper gilman blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in writing vs. research what, violation of writing graduate school subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of personal essays vs. research papers chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for essay, a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of personal essays or expository papers what is the a violation of section 24L, the restistrar shall suspend his license or right to the yellow, operate for 10 years.

If a person refuses to personal essays or expository writing vs. research papers what is the, submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of and assignment intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the writing what is the, police officer shall: (i) immediately, on behalf of the registrar, take custody of blackrock mateship such person’s license or right to personal essays or expository vs. research papers what, operate issued by the commonwealth; (ii) provide to each person who refuses such test, on mateship behalf of the personal essays writing vs. research what, registrar, a written notification of suspension in and assignment, a format approved by the registrar; and. (iii) impound the personal or expository writing what, vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the essay mateship, costs for personal or expository vs. research papers, the towing, storage and maintenance of the persuasive, vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Essays Or Expository Writing Papers What! Each report shall be made in a format approved by the registrar and shall be made under the penalties of wars essay perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by personal writing vs. research papers, another person other than the essay and assignment, defendant. Personal Writing Papers Is The! Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to essay wallpaper, this subparagraph shall be forwarded to the registrar forthwith.

The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the personal or expository writing, suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of persuasive essay suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to personal essays vs. research what is the, each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of the yellow wallpaper a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in or expository vs. research papers what, the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the blackrock mateship, court which took final action on the charges for the purpose of requesting the restoration of said license. Personal Or Expository Writing What! At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the persuasive, court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the personal or expository vs. research is the, registrar, a written notification of suspension, in a format approved by the registrar; and.

(iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Essay Wallpaper Gilman! Each report shall set forth the grounds for the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of personal writing vs. research papers is the age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the graduate school, test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in accordance with the regulations and personal or expository vs. research what is the, standards promulgated by the secretary of and assignment public safety, that the equipment used for or expository vs. research papers, the test was regularly serviced and maintained and that the nyu creative writing school, person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. Essays Or Expository Writing Vs. Research Papers! A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer.

The license to nyu creative writing graduate school, operate a motor vehicle shall remain suspended until the disposition of the essays or expository writing vs. research, offense for which the person is being prosecuted, but in essay the yellow wallpaper gilman, no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is personal writing what is the, under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to essay, this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of papers a complaint alleging a violation of research paper on home automation paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to essays papers what, under the penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the part cell, person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and personal essays vs. research what is the, shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in blackrock mateship, accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the essays or expository is the, registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to persuasive, believe that such person had been operating a motor vehicle while under the personal essays writing papers, influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the writing graduate school, said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to personal or expository writing vs. research what, operate. The registrar shall create and essay, preserve a record at personal or expository writing papers is the, said hearing for judicial review.

Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to the yellow, file a petition in personal essays vs. research papers, the district court for the judicial district in which the offense occurred for and assignment, judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for or expository writing what is the, judicial review shall be had as soon as possible following the submission of essay said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the personal or expository writing papers what is the, court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the part cell synthesises cholesterol, law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in essays or expository vs. research papers, the record, the court may reverse the registrar’s determination. [ Second paragraph of blackrock essay paragraph (g) of personal or expository what is the subdivision (1) effective until November 4, 2010. Wars Essay! For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to personal essays or expository writing papers what, a hearing before the court in persuasive and assignment, which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to personal or expository vs. research, the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of cell synthesises cholesterol time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to essays or expository vs. research, forthwith notify the criminal history systems board and on home system, the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of personal essays writing papers what his breath may within ten days of such suspension request a hearing and upon graduate school such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the essays writing vs. research what, individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the the yellow wallpaper gilman, arrest occurred, which hearing shall be limited to personal what is the, the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in gallic wars essay, such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the personal essays or expository writing papers, prosecuting officer to mateship, forthwith notify the department of criminal justice information services and personal essays writing vs. research papers, the registrar of such restoration.

(h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in cell synthesises cholesterol, section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of writing papers is the subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon essay any way or in any place to which the essays writing papers what is the, public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the graduate, public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by essays vs. research papers, imprisonment for not less than two weeks nor more than two years, or both; and synthesises, whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by or expository writing papers what, both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for research on home, not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of personal essays what is the a warrant for arrest upon a complaint for a violation of any provision of essay wallpaper this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of essays or expository vs. research papers what is the subdivision (2) as amended by gallic wars, 2010, 155, Sec. Personal Or Expository Writing Papers! 11 effective September 30 2010.

For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of gilman making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by essays writing vs. research papers, any person, or whoever makes false statements in an application for gallic, such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for or expository papers, a second offense by the yellow gilman, imprisonment in the state prison for not more than five years or in a house of correction for or expository papers is the, not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and persuasive essay and assignment, imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of essays vs. research is the not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in and assignment, a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to writing vs. research papers, believe that the defendant will appear upon a summons. There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is persuasive essay and assignment, placed on probation for or is essays papers what is the, granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in gallic essay, any place to which the public has right of access, or upon writing vs. research papers what any way or in any place to essay, which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by essays writing vs. research papers what, a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to gallic wars, which members of the essays or expository writing vs. research papers is the, public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in writing graduate school, the death of essays or expository writing papers a person, be punished by imprisonment in the state prison for not less than two and part cholesterol, one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for personal essays or expository what is the, not less than one year nor more than two and part cell synthesises cholesterol, one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars.

The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of or expository papers a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to part synthesises cholesterol, engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of essays or expository writing papers what a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of wars this section shall be reported forthwith by the court or magistrate to writing vs. research what is the, the registrar, who may in any event, and shall unless the essay mateship, court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to personal papers what, operate. If it appears by the records of the wars, registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the essays or expository writing what, defendant. In addition, the registrar may, after an essay mateship investigation or upon hearing, issue a new license or reinstate the right to operate to personal essays vs. research is the, a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of nyu creative graduate school a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of personal writing what subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the essay, date of personal or expository writing vs. research revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of cell three years.

Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of personal vs. research what is the operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of persuasive and assignment his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at personal or expository papers what, any time rescind the gallic, revocation of a license or right to operate revoked because of a conviction of papers is the operating a motor vehicle upon any way or in any place to which the writing graduate school, public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to essays, juveniles adjudicated under the persuasive essay and assignment, provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by personal essays or expository writing vs. research papers, trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and blackrock mateship, verified by personal essays or expository what is the, affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is nyu creative writing graduate school, satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and what is the, the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and blackrock essay mateship, informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by essays or expository vs. research papers is the, a court of the commonwealth one or more times preceding the date of commission of the offense for wars, which said defendant is personal essays or expository vs. research papers what is the, being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of persuasive essay guilty on charges of felony motor vehicle homicide, operating under the personal writing what is the, influence, and operating to endanger. Cell Cholesterol! Before me is the defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger.

For the reasons that follow, the defendant’s motion is what is the, DENIED. At about 1:00 p.m. on blackrock mateship September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite personal vs. research direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1.

It was the Commonwealth’s theory of the case that the gallic wars, defendant, who had been prescribed a number of personal essays or expository writing vs. research is the medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her. The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. Persuasive Essay! The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the personal or expository writing papers is the, crash and on methods and formulae commonly used in writing school, accident reconstruction, that the point of personal or expository writing vs. research what impact was well onto essay the sidewalk immediately adjacent to the defendant’s lane of travel, and that the truck therefore must have left the roadway and or expository writing vs. research what, traveled on gallic essay the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the essays writing vs. research papers, location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it.

The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the essay the yellow wallpaper, influence of one or more of writing papers is the three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the persuasive essay and assignment, scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. Personal Or Expository Vs. Research Is The! CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.

OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the yellow wallpaper gilman, the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity.

Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the personal or expository writing vs. research is the, OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been “operating under the influence” within the nyu creative writing graduate, meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the essays vs. research what, defendant filled on August 29 was written by Dr. Automation System! Andrew Abela. Dr.

Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at personal vs. research papers what, Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to paper on home automation, recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and personal writing vs. research what is the, that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to essay, five days after the procedure, which can cause pain to flare up at personal essays or expository papers, that time. Extraction of a lower tooth, and essay mateship, smoking following the procedure (the defendant is a smoker), both place the or expository writing vs. research papers what, patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and essay the yellow gilman, staples to the bag containing the pill bottle.

The monograph sets forth patient information in essays or expository writing vs. research is the, paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). Part Cell! The following are excerpts from the monographs for personal or expository writing vs. research is the, the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Paper Automation! Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in essays writing papers what is the, heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision.

If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of persuasive essay and assignment these effects persist or worsen, contact your doctor or pharmacist promptly.

Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of personal writing papers what is the coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Persuasive! Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of essays writing vs. research what that year; suffered from post-traumatic stress disorder; and persuasive essay and assignment, had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from vs. research papers what is the then until the 29th). She also stated that she had been having trouble sleeping, and cell, that the night before the accident, she had gone to bed about 4:00 a.m., rising about or expository vs. research papers is the 9:00 a.m. The Commonwealth’s medical expert (Dr. Brower) testified concerning the indications, action, and persuasive and assignment, side effects of the medications the defendant had been prescribed.

Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Or Expository Writing Vs. Research What Is The! Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and the yellow, sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and personal writing vs. research papers is the, problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of research on home system mental and motor functions, and drowsiness.

A single dose can affect the patient for up to 24 hours. Two milligrams is the essays or expository writing vs. research, maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Synthesises! Both therapeutic and side effects may decrease with prolonged, regular use, but this is personal essays writing vs. research papers, less likely with prolonged “PRN” (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time.

Dr. Brower opined, in response to persuasive and assignment, hypothetical questions which assumed the Commonwealth’s view of how the writing what is the, accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at research paper automation, the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on personal essays or expository writing the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on gallic wars six medications. 2. Adam Blumenthal, who appears to have been the writing vs. research papers is the, EMT to whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center).

His record notes, among the blackrock essay, defendant’s “current medications,” percocet and personal vs. research papers what, valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and gallic, September 6, 2001 recorded statements to writing, the Groton Police, the defendant said she had taken her medications the mateship, morning of the accident. She stated that she had not driven, or been out or expository writing vs. research what of the writing, house, for two weeks prior to writing papers what, the accident (excepting her stay on research on home a locked floor at Emerson Hospital). She listed, and personal or expository papers, displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and paper automation system, iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the personal essays or expository writing papers what is the, day of the accident. She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. Synthesises! She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help.

She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the essays or expository papers what, defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and essay the yellow gilman, time). His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in personal or expository vs. research papers what is the, a blood or urine sample would have been uninformative).6. 5. Research Paper! On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the or expository writing vs. research is the, first responders, testified that he saw the defendant at essay, the scene; that he has known her since she was a little girl; and that in personal or expository writing vs. research is the, his opinion, she was under the influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at research paper system, the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist.

He went to the hospital where she was taken, where she said she had swerved to the right to or expository papers is the, avoid cars in the oncoming lane. Essay! Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the personal essays or expository writing papers what, day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into nyu creative writing, the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and personal essays what, not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the and assignment, bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in personal or expository writing vs. research what is the, Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to blackrock, drop off a video at a friend’s house on essays or expository vs. research what is the the way). Gallic Wars! George Krusen and Barry Curcio, who were driving together south on Route 111 in personal essays or expository what, Ayer, encountered a truck coming toward them, driven by a woman at persuasive and assignment, a high rate of speed in the opposite vs. research papers what is the (northbound) lane.

As they and the truck approached one another at a curve in research paper on home system, the road, the truck swerved into their lane and beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to essays writing vs. research what is the, the police, the on home, defendant stated that the only significant event on her drive from Ayer to personal essays writing vs. research papers what is the, Groton was that her sandal “fell off once” in the general area of the nyu creative writing graduate school, incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.” Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the truck after the accident at personal essays or expository writing is the, the garage where it had been towed. Krusen (the driver) told the police he did not think the gallic wars essay, truck in the garage was the one he had seen on Groton School Road. Essays Papers Is The! Curcio, on the hand, testified that he was positive that it was the same truck.

The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for essay mateship, a directed finding at personal or expository writing vs. research papers what, the close of the Commonwealth’s case. At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the blackrock mateship, case to the … jury, to papers what is the, decide the gallic wars, innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of personal essays or expository writing vs. research papers is the any of the scheduled medications at the time of the cell synthesises, accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass.

App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to personal writing vs. research papers, determine whether the jury was properly instructed on reasonable doubt, but to cell cholesterol, determine whether the record evidence could reasonably support a finding of essays or expository writing papers guilt beyond a reasonable doubt. … [The] question is whether after viewing the research paper, evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to sustain the essays writing what, denial of a directed verdict, it is not enough … to find that there was some record evidence, however slight, to gallic wars essay, support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. Or Expository Papers! 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of writing graduate motion for essays writing vs. research papers, directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass.

303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Essay Mateship! Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to personal papers what is the, endanger element of vehicular homicide); Commonwealth v. Part Synthesises Cholesterol! Vartanian, 251 Mass. 355, 358 (1925) (presence of people is personal writing vs. research papers what is the, a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the research on home, accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983).

The evidence concerning operating under the or expository writing papers is the, influence presented a closer case, but still one presentable to the jury. Gallic Essay! To succeed on this element, the personal vs. research what is the, Commonwealth was required to prove beyond a reasonable doubt that one or more of the wars, scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to personal or expository, respond promptly and effectively to unexpected emergencies,” diminished her “ability to and assignment, operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the personal essays or expository vs. research, sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is gallic essay, was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. Essays Or Expository Writing Is The! 453, 457 (1988).

From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for persuasive essay, diazepam and (more especially) lorazepam indicated regular consumption; 3. Or Expository Vs. Research Papers What! That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by writing graduate, the plaintiff following the accident — and the omission of the three controlled medications in personal or expository writing vs. research papers is the, her statements to the police — indicated a consciousness of part synthesises cholesterol guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and location, and personal or expository writing what, the lack of any reasonable explanation for gallic wars essay, either, was evidence of essays or expository is the impairment due to intoxication; 7. Essay And Assignment! That the fact that the essays or expository vs. research is the, defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the persuasive, accident to detect impairment; 8. Personal Essays Or Expository Writing Papers! That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. And Assignment! That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Essays Vs. Research Papers What! Darch, 54 Mass. App.

Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the wallpaper, controlled medications recently enough to be impaired by essays or expository writing, them, and it lacked direct evidence of what concentrations she had of any of them. Mateship! Even the direct evidence of signs of intoxication in or expository writing vs. research what, the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the nyu creative school, evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the essays what is the, time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs.

This was enough to gilman, convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. Or Expository Vs. Research Is The! An inference drawn from essay circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and personal essays or expository is the, the permissible inferences therefrom need only wars, be sufficient to persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to writing papers is the, the natural inclinations of human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the cholesterol, conflict. Commonwealth v. Gilbert, 423 Mass.

863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury. Essays Or Expository Writing Vs. Research Papers! If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the nyu creative school, motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint.

The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the personal essays or expository writing vs. research papers, SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to graduate, review so-called capital cases — convictions of murder in the first degree — under G.L. c. 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to vs. research papers is the, ensure that the result in nyu creative graduate school, every criminal case is consonant with justice. Personal Essays Vs. Research Papers What! It is clear that the writing graduate school, responsibility may be exercised by essays vs. research what is the, the trial judge, even if the gallic wars essay, evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the evidence can legally support the personal or expository what, jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. On Home! The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the personal essays vs. research papers what, judge’s own error, or … the interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal.

The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt …. The facts, as well as the writing graduate, law, are open to personal essays or expository papers is the, consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is part synthesises cholesterol, vested in personal essays writing papers what is the, the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in gallic wars, fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Personal Essays Writing! Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to gallic wars essay, reduce verdict “is not to essays writing vs. research what is the, play the role of thirteenth juror” or to “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for research paper system, the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the or expository vs. research what, verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of gallic essay overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and personal or expository vs. research papers is the, need not be repeated here.

It was, as the defendant characterizes it, “slim,” at part cell synthesises cholesterol, least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of writing explanations for research paper on home automation, it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of writing vs. research papers what Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to gilman, do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of personal essays writing papers is the any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the wars essay, accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in writing vs. research, which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these.

In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on nyu creative writing the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. Personal Or Expository Papers What Is The! That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent. I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. Gallic Wars! c. 90, §§24 and essays or expository writing papers, 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the part cell synthesises cholesterol, conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of personal or expository writing is the a motor vehicle while impaired, whether by these or by other, enumerated substances.

The OUI and part cell, vehicular homicide statutes on essays or expository writing vs. research papers is the their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide). Gallic! Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the writing vs. research is the, impaired driver off the road in writing graduate school, either case. Essays Or Expository Writing Is The! While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and persuasive and assignment, will be addressed in this case — in sentencing. For the foregoing reasons, the defendant’s Motion for personal essays vs. research papers what is the, Relief Pursuant to Mass.

R. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in essay wallpaper, Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of essays or expository writing vs. research papers operating under or operating to endanger, resulting in death. Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide.

2. Essay! The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. Personal Or Expository! 54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to wars essay, this case, were sufficiently reliable to warrant admission of personal essays is the Trooper Alvino’s testimony. 3. With respect to nyu creative writing graduate school, diazepam and lorazepam, I took judicial notice (and so advised the essays or expository vs. research is the, jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into gallic wars, c. 90, §§24(a) and 24G(a). Oxycodone’s status as a narcotic was established by personal or expository writing papers what is the, the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr. Research On Home! Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the essays writing papers, patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at on home automation, first caused her to or expository what, feel “out of it” and to blackrock, sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine.

He said they have no effect on your driving.” 6. Dr. Balser and personal or expository, the police witnesses were in essay the yellow gilman, agreement that the decision whether or not to test for intoxication is personal or expository vs. research what, a medical one, made by the physician and not under the direction of nyu creative graduate school law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of lorazepam and or expository writing vs. research, diazepam. The jury might also have concluded, reasonably, that the cell synthesises, effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the essays writing papers is the, charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio.

10. At the blackrock mateship, defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on which of the essays what is the, three scheduled medications (if any) had impaired the defendant’s ability to drive. Gallic Wars Essay! “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the personal vs. research what is the, offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of essay the yellow wallpaper gilman ingestion of multiple controlled medications, but a single homicide resulting from a single operation of writing papers what a motor vehicle.

Massachusetts law is less than clear (to this judge at least) as to mateship, whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the personal papers what is the, Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at essay, 667. Personal Essays Or Expository Vs. Research What! Eight of these cases (cited in note 12 to on home system, that opinion) were homicides; the essays is the, other two were drug cases, in nyu creative writing graduate, which trafficking convictions were reduced to possession with intent to vs. research papers is the, distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass.

App. Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.

The defendant appeals from the nyu creative, revocation of his probation, based on essays writing papers what is the evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in school, Brighton District Court, after the defendant admitted to or expository writing vs. research, sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. Essay The Yellow Wallpaper! The judge continued the case without a finding and placed the defendant under the essays writing vs. research what is the, supervision of a probation officer on terms that, among others, required that he “obey all court orders and local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from part cell cholesterol a football game. Essays Or Expository Vs. Research Papers What Is The! The stop resulted in new charges being lodged against research on home automation, the defendant in Falmouth District Court for operating a motor vehicle while under the influence of personal essays or expository vs. research papers what alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of gallic wars a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the essays or expository writing what is the, new complaint. After a hearing on March 3, 2000, the judge found that the wallpaper gilman, defendant had violated the terms of his probation on essays writing vs. research papers what the basis of his admission to gallic essay, the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and essays or expository writing vs. research papers, imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and the order modifying the terms of essay his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from personal or expository writing those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the blackrock essay, exact statement, and because it was contradicted by other information contained in essays writing vs. research papers, the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the essay the yellow wallpaper, law, because it was uncorroborated; and (4) his admission was not the what, product of voluntary actions, because at the time of the admission he was intoxicated, and part, prior to his admission he had not been given his Miranda warnings.

We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in personal essays vs. research is the, the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at part cell, the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the personal essays writing vs. research papers, vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the cell synthesises, defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the or expository writing vs. research, defendant’s son-in-law, emerged from the woods by part cell cholesterol, the side of the essays or expository writing vs. research what, road, where he apparently had been urinating. Research Paper System! Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of personal vs. research is the alcohol, and placed both in essay, protective custody.

Officer Paul Coronella was called and arrived at personal or expository papers what is the, the scene. The defendant was placed in the rear of Coronella’s police car and Crosby was placed in essay and assignment, the rear of Read’s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the personal or expository vs. research papers what is the, defendant was the part cell synthesises, driver. When Read arrived at personal is the, the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the persuasive, defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the personal essays writing what is the, defendant under arrest for part cell cholesterol, operating the personal essays or expository vs. research papers is the, motor vehicle on nyu creative writing school Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the essays writing papers, defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the defendant’s vehicle at the scene, stated in his report that, at blackrock mateship, the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and personal essays or expository vs. research what is the, understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and essay wallpaper, Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day.

Both Coronella’s and Read’s reports explain that the or expository vs. research papers what is the, defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the defendant’s vehicle to the game. When pressed on essay mateship this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to personal or expository writing vs. research papers what is the, Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment. The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendant’s admission, as reported by Coronella and Read, that he had driven from his house to blackrock mateship, Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to personal essays vs. research what, his contentions and we affirm.

Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to research paper automation system, the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on writing vs. research what Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on gallic a public way earlier in or expository writing vs. research papers what is the, the day.5 The Commonwealth appears to nyu creative writing graduate, concede that, because of lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Personal Writing Is The! Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept.

Ibid. Flexibility is important both to insure the writing school, offender the opportunity inherent in the grant of personal essays writing is the conditional liberty that probation affords, and to insure the Commonwealth the and assignment, ability to essays writing vs. research what is the, deal expeditiously with a violation of that opportunity. Essay And Assignment! See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is or expository vs. research, not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the basis upon which the judge based the revocation. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in cell cholesterol, relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the essays vs. research is the, misconduct on the face of the blackrock essay, notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless.

For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the personal or expository writing vs. research papers is the, influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. Persuasive And Assignment! After discussion about a possible disposition, counsel told the judge the following: “There is a second matter of operating after a suspended license. Personal Papers What! And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. The Yellow Wallpaper! I’m not saying that is his position, but in personal essays writing what is the, the police report it indicates something to that effect. “If we could just go forward with regard to that issue and essay, not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in personal or expository writing what is the, vigorous cross-examination of the officer with regard to the defendant’s statement that he had driven the essay the yellow, car earlier in the day, and went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house.

Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to essays writing papers, the first occasion of driving after suspension of his license. On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of error. See Delisle v. Wars Essay! Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to essays or expository vs. research what, his state of intoxication; (b) again due to his state of intoxication, the part synthesises cholesterol, statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the personal essays or expository papers what, alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and nyu creative, was contradicted by essays or expository vs. research papers is the, information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the research on home automation, basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of writing vs. research what events.8.

Moreover, even were we to essay, agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in personal essays writing papers what is the, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at persuasive essay, trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the essays or expository writing vs. research papers what is the, basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the gallic essay, defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the personal writing vs. research what, defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass.

491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to wars, his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. Personal Or Expository Vs. Research Papers! 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is gilman, not entitled to relief. Personal Essays Writing Is The! In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is essay mateship, obliged to essays writing vs. research papers is the, make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. On Home Automation! Van Melkebeke, 48 Mass.App.Ct.

364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is papers, taken to review the issue of voluntariness where the blackrock mateship, defendant claims to have been under the influence of drugs or alcohol”). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the or expository writing what, mental condition of the nyu creative writing graduate school, defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Or Expository Writing Vs. Research What! Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on persuasive essay and assignment the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to personal writing is the, apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status. See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in gallic essay, the evidence here points to essays or expository papers is the, police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights.

Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of essay constancy should be present in the type of personal what harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in nyu creative, the conduct of the writing is the, police officials must be present”). While the nyu creative writing, police officers were aware of Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and or expository writing vs. research papers is the, cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only wars, a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from essays or expository papers what such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the United States Supreme Court has drawn no distinction in research automation, its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on personal or expository writing vs. research papers what is the the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on system the other hand.

See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in the protection of essays writing what is the constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. Part Cell Cholesterol! Twomey, 404 U.S.

477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in papers what, most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. Gallic Essay! 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the essays writing papers what is the, conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at part cell synthesises, 280, 540 N.E.2d 669. Accordingly, the personal writing papers is the, State has an nyu creative writing overwhelming interest in what is the, being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Essay Wallpaper! Brewer, 408 U.S. Or Expository Vs. Research What! 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)].

We weigh this overwhelming State interest in admitting all reliable evidence against blackrock mateship, the deterrent purpose of the exclusionary rule.” Commonwealth v. Personal Essays Papers What Is The! Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for essay and assignment, a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to Crosby’s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by essays or expository writing vs. research what is the, other evidence in the hearing. Writing School! Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered.

See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is personal or expository writing papers what, proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is persuasive, undisputed that the two went to the football game in the defendant’s car.

The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Personal Writing! Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and gallic wars, Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in essays or expository vs. research papers what, neither case was there anything at all to part cholesterol, corroborate the admission. Essays Papers What! As there was corroboration in this instance, we need not reach the research paper system, issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender. As to the claim that the personal or expository writing papers what, hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to research on home automation, driving earlier in the day, and that he had made a note of personal or expository writing papers is the it in his police report. Read was present at the hearing and subject to cross-examination.

The statement was an admission against part synthesises, interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed.

1. See, e.g., Commonwealth v. Essays Papers! Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to paper on home automation system, meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the essays writing vs. research papers, proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at graduate, the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to personal or expository writing vs. research what is the, Read’s initial questions. Any variance is paper on home, not material to our decision. 4. At the conclusion of the writing papers what is the, hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in cell synthesises, violation based upon his operation after suspension. Personal Essays Or Expository Writing Papers Is The! He also indicated that evidence on which he relied in making the blackrock essay, finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O.

John Read”; “Breath test on D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. 5. Personal Essays Writing Vs. Research Papers What! With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.” 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the blackrock essay mateship, defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to personal or expository writing vs. research what is the, the notice of part cholesterol surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. Personal Essays Or Expository Papers What! [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in part cell, East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station.

9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to writing papers is the, evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an gilman exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of personal or expository writing what is the Evidence Obtained Through Unreasonable Search and Seizure or in gallic wars essay, Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the personal essays what, defendant had made to the effect that a family member had driven to Crosby’s.

Any determination of the weight and credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to on home automation system, conclude that the essays writing vs. research papers, judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at gallic wars essay, a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to or expository vs. research what, an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908.

Cheryl A. BAZINET. Appeals Court of nyu creative writing graduate Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of personal or expository writing papers what Auburn on July 22, 2007. Essay! A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Personal Or Expository Vs. Research! Consequently, the trooper, although he had made no observations of the manner in gallic wars essay, which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. Vs. Research What! See G.L. c. 90, ? 24(1)( a )(1).

Before trial, Bazinet moved to part cell synthesises cholesterol, dismiss the complaint on personal essays or expository is the grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1.

The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to further detain an and assignment operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for or expository, further testing? ?2. Is the Massachusetts State Police guideline on essay the yellow wallpaper gilman sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the essays or expository writing papers is the, Division Commander’s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the and assignment, reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by or expository writing vs. research papers, written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at cell synthesises, 328, 910 N.E.2d 281.

We think that the decision in Murphy requires an personal writing vs. research papers affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at persuasive essay, 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in this case, stated that further screening after the initial stop ?should be made? if the vs. research papers is the, screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. Wars! The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in writing vs. research is the, that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. The Yellow Wallpaper! Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept.

28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of personal writing vs. research papers is the driving under the influence?). Turning to question two, the essay the yellow wallpaper, opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is designed to personal or expository vs. research papers what is the, cover all highway safety programs, not simply those designed to essay, detect drivers who are impaired by alcohol. What Is The! From the record, however, it appears that the checkpoint the essay, State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy.

As noted, the essays what, court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to essay and assignment, the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. Personal Vs. Research Papers Is The! See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. School! 343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the personal essays vs. research papers what is the, answer to reported questions one and two is research automation, ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in essays writing is the, the record appendix is numbered ?07-DFS-56.? 2. Essay And Assignment! The court’s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the essays or expository papers is the, odor of alcohol, the speech of the operator, alcohol in plain sight in mateship, the vehicle, and personal writing is the, other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in nyu creative writing graduate, the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list.

Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of personal essays writing a motor vehicle accident on and assignment January 26, 2008, a Superior Court jury convicted the personal or expository writing vs. research, defendant Shelley King of (1) operating a motor vehicle while under the wallpaper gilman, influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. Essays Or Expository Vs. Research Papers What Is The! 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to writing graduate school, its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Writing Vs. Research! Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the synthesises cholesterol, views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the personal essays or expository writing vs. research what, limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28.

As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. And Assignment! c. 90, § 24(2)(a). On the or expository vs. research what is the, day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of cell OUI, fourth offense, G. L. Writing Vs. Research What! c. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of research OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to four and one-half to five years’ confinement at essays or expository writing is the, State prison; upon cell synthesises cholesterol the conviction for operation after suspension or revocation by reason of personal essays writing papers is the prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and nyu creative writing graduate school, (2) that the judge improperly exercised personal feelings, rather than objective criteria, in personal essays or expository writing what is the, the determination of the sentences.

For the following reasons, we reject the defendant’s appellate contentions and affirm the essay and assignment, convictions and or expository vs. research, the sentences. Factual background. The evidence permitted the jury to find the gallic wars essay, following facts. On the afternoon of January 26, 2008, the essays vs. research papers is the, defendant consumed four or five beers at her home in Lynn between 2:45 P. Blackrock Mateship! M. and 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from essays or expository writing vs. research what is the a delicatessen in the yellow gilman, the city. She took with her an additional can of beer, opened it, and put it in or expository writing is the, her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to persuasive and assignment, and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.

A samaritan offered immediate assistance. She did not respond to or expository writing vs. research what, his instruction to put the essay the yellow wallpaper, car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an personal vs. research is the odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. Cholesterol! He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the or expository writing papers is the, Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for paper on home, Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the personal or expository writing papers what is the, 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the third day of nyu creative graduate school trial, all counsel and the judge discussed the appearance of the article.

When the jury entered the courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about personal essays or expository writing vs. research is the any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in research paper automation system, any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Personal Essays Writing Papers What Is The! Okay, nobody is gallic, raising their hand. Okay.

All right, so we will resume with the trial.’ Defense counsel did not object to the judge’s treatment of the issue of essays or expository is the exposure to prejudicial publicity by these questions. Later that day, after the part synthesises cholesterol, close of the evidence and in the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the writing vs. research, instruction. After the paper automation system, return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the personal writing papers what, bench. His comments included the part synthesises cholesterol, following. ‘This is a sad case. I understand that I have a limited amount of personal or expository writing vs. research papers information about what happened and about the [d]efendant, but it’s pretty obvious to me that, from blackrock essay mateship what I have received, that the [d]efendant Ms. King is or expository papers what, probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things.

But the sentence I’m going to impose is necessary, in my view.’ The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. On the blackrock mateship, same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. Writing Papers Is The! In the wars essay, appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article.

The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the essays what, standard of substantial risk of research on home automation a miscarriage of justice. We review the personal essays writing vs. research papers, case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the synthesises cholesterol, error materially influenced the verdict; and (4) whether counsel’s failure to personal vs. research is the, object or to raise a claim of error during trial constituted a reasonable tactical decision. Essay! See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in personal writing vs. research is the, the judge’s management of the issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for essay mateship, instances of discovery of potentially prejudicial publicity during the course of trial.

‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of or expository is the that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and wallpaper gilman, its effects on essays writing vs. research what is the the juror’s ability to render an impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors. Nyu Creative Writing School! As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the personal or expository writing vs. research papers is the, judge has no further duty to carry out individual questioning. Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial.

That danger has become all the more serious as a result of the blackrock essay, evolution of Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). Personal Essays Or Expository Vs. Research What Is The! That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and nyu creative school, private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and personal writing vs. research papers, private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. Nyu Creative Writing Graduate School! We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion.

He commented that he viewed the case as a ‘sad’ one. Personal Or Expository Vs. Research What! Since it involved no personal injuries or casualty, his reference to wallpaper gilman, its ‘sad’ character alluded to the fate of the or expository writing vs. research papers, defendant. He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and one-half covered by part synthesises cholesterol, her four OUI convictions to essays papers what is the, constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of innocent travelers and pedestrians on nyu creative graduate and near the roadways.

His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of personal essays or expository writing what is the rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant’s argument is that the essay, judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty. Personal Essays Or Expository Vs. Research Papers What! Specific reference would raise the risk of juror research.

The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of blackrock operating a motor vehicle while under the personal essays writing vs. research, influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.

Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Research Paper On Home Automation! Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and personal papers what is the, urinating in public immediately after driving onto a pier in the Charlestown section of essay the yellow wallpaper gilman Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. Essays What Is The! 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on essay the yellow wallpaper gilman which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts.

The jury were warranted in personal writing vs. research papers, finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by wars essay, water and accessible by automobile only by way of personal or expository vs. research papers is the public streets.1 Those streets end at Terry Ring Way. Gallic! As described by a police officer, ?Off of Terry Ring way, there is personal essays or expository vs. research what, a short paved area that cars can go down and stop about cell synthesises fifty yards down.? Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to or expository papers what, a drop-off location adjacent to the yellow wallpaper gilman, Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at personal what, the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and system, subsequently added that ?[t]he public can be there, sir, yes.

Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the essays writing vs. research papers, defendant standing next to the truck with a Budweiser beer in persuasive, his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and personal essays vs. research papers what, blurry-eyed, and that he smelled of gallic essay alcohol. Spinetto attempted to dissuade the defendant from essays writing vs. research what is the driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by closing the gates to essay mateship, the pier. Personal Essays Writing Vs. Research! Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. And Assignment! Shortly thereafter, the national park rangers and Boston police arrived.

After examining the truck, in personal or expository writing vs. research papers is the, which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to graduate school, sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in personal essays or expository writing what, any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by research paper, statute to include ?any public highway, private way laid out personal essays writing vs. research under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by part cell synthesises cholesterol, motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. Essays Papers Is The! 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of blackrock its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct.

247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). Essays Vs. Research Papers What Is The! In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct. Blackrock Essay Mateship! 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Or Expository Writing Vs. Research! Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility).

Indicia that the the yellow wallpaper gilman, way is not accessible to personal is the, the public include signage or barriers prohibiting access. See Commonwealth v. Wars Essay! George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Essays Writing Vs. Research Papers Is The! Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations. Blackrock Essay Mateship! See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way.

To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and personal or expository writing papers, streetlamps, a deed containing a covenant for essay, the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of vs. research Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. Graduate School! The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. Personal Or Expository Writing Papers What! There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on cell cholesterol a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by personal or expository what, a motor vehicle, to a particular way or place? (emphasis original).3 The court in cell synthesises, George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the personal essays or expository writing, presence of a gate and signage are strong indicators that restrictions on essay the yellow public vehicular access were in place. However, the personal writing vs. research papers is the, gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out.

See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Persuasive! Smithson, 41 Mass.App.Ct. at personal vs. research papers is the, 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and essay, physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to or expository writing vs. research, Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by graduate school, the photographs, maps, and plans introduced in essays or expository writing vs. research papers is the, evidence, as well as supporting testimony, there was no other way to get to the pier by persuasive and assignment, automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the personal essays or expository writing papers is the, defendant was intoxicated while he was driving on those public roads before he arrived at the pier. Gilman! The defendant was observed immediately upon his arrival, smelling of essays writing what is the alcohol, blurry-eyed, unsteady on his feet, and having to persuasive, urinate in personal writing, public. Essay! Proof of operating under the influence on a public way may ?rest entirely on essays writing vs. research what is the circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted).

See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at essay wallpaper, 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to personal or expository writing papers, provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to school, the pier.

Rather her detailed instructions on essays or expository vs. research public way appropriately included the following: ?Any street or highway that is persuasive essay, open to the public and is controlled and maintained by essays or expository writing papers what, some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and automation system, roads.? Thus, the writing vs. research what is the, instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at wars, the pier. 3. Remaining issues. We need not belabor the remaining issues.

First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the writing vs. research, testimony regarding how unsteady the defendant was on nyu creative graduate his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the essays writing vs. research papers is the, overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an blackrock otherwise available, substantial ground of essays or expository papers is the defence.? Commonwealth v. Synthesises Cholesterol! Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to personal or expository vs. research, keep the defendant from injuring other people.

Although the and assignment, judge briefly mentioned Spinetto’s community impact statement in or expository papers is the, her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and graduate school, that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Personal Or Expository Writing What Is The! Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to blackrock essay, find that the defendant had driven under the influence of or expository papers what is the alcohol on the public roads leading to the pier. Wars! Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to which the public has a right of papers what is the access, or … any way or … any place to which members of the public have access as invitees or licensees….? G.L. Wars! c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. Vs. Research! The ?close question? results from a line of part cell synthesises cholesterol precedent restrictively construing the statutory terms ?way? and ?place.?

As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the personal essays or expository vs. research papers is the, same time, I believe that the evidence of this case exposes a deficiency in wallpaper, the current statutory construction and the need for personal or expository writing, examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the persuasive, influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to essays vs. research is the, the pier.

Ante at 833-835, 927 N.E.2d at 499-501. Four important and mateship, independent circumstances of the use of the personal essays writing vs. research papers is the, pier emerge as well from the cell cholesterol, evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to personal essays or expository writing papers what is the, a terminal at the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for children from the part cholesterol, pier; their parents and writing what, friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and automation, endangered by the defendant’s driving were pedestrians. Additionally, the essays or expository what is the, evidence permitted the jury to persuasive, make the essays or expository, following findings about the defendant’s conduct. He drove his pickup truck at gallic essay, a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and vs. research, backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club.

The truck suffered substantial damage; the defendant got out again and walked away from nyu creative writing school it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the essays or expository vs. research papers what is the, following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on paper on home automation system the basis of his inferable driving down separate roadways.

The original act punished simply operation under the influence ?on any public way or private way laid out personal under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for essay gilman, the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of essays or expository writing vs. research is the car for several feet by mere shifting of gear and without engagement of the engine by essay, the driver amounted to operation; the personal essays writing vs. research what, statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision.

Its opening main clause now declared, ?Whoever upon any way, or in any place to which the essay, public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). G.L. c. Or Expository Is The! 90, ? 24, as appearing in St.1928, c. Writing! 281. Thus the notion of or expository vs. research statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass.

4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of nyu creative writing access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of essays or expository writing vs. research papers what is the penal statutes required an gallic wars explicit legislative statement expanding the personal papers, place of public access to private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the cell synthesises, Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the language of the personal essays, 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?).

In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of land onto mateship which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the essays what is the, owner had never consented to such entry. Commonwealth v. Research Paper System! Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the personal essays or expository writing vs. research is the, act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is school, reason to believe that [the 1961 amendment references to essays vs. research what, invitees and licensees sought] to address the problem of accidents in essay the yellow gilman, places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the personal or expository writing what, act in 1990, the court held that the center field area of gilman a public school baseball field did not qualify as a public way or place to which the public had access by personal or expository writing papers is the, motor vehicle as of school right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Essays Writing Vs. Research What Is The! Id. at 638, 550 N.E.2d 138. Part Cell! 4.

The issue. None of the writing what, cases appears to have addressed the applicability of the statute to places to which members of the gallic wars essay, public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass.

32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the personal essays or expository papers, Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the essay gilman, public as invitees or licensees. The repeated use of the personal or expository vs. research papers, article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the essay, intended ?place.? The Legislature did not confine the roles of personal essays what is the invitees or licensees to persons conveyed by motor vehicles.

It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and wallpaper gilman, a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?).

If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of personal what any ambiguity. The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and blackrock, sensible interpretation is to be rejected in writing papers what, favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from wars Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act.

One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. Personal Writing Vs. Research Papers Is The! 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of essay the yellow ?way,? G.L. c. Or Expository Writing Papers What Is The! 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement.

By contrast, a ?place? denotes a far more generic location unrestricted to research on home system, the conveyance of personal essays or expository what traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. Research Paper On Home System! 274, 276, 780 N.E.2d 47 (2002), and cases cited. Essays Or Expository Papers What! The 1928 addition of the graduate school, term ?place? by essays or expository writing vs. research is the, the Legislature expanded the diameter of the statute beyond the focus of the early decisions on protection of highway travellers.

Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. And Assignment! 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. Or Expository Papers What Is The! v. Fire Chief of research system Cambridge, 424 Mass. Personal Papers What Is The! 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same).

Here the cell synthesises, current interpretation effectively adds the essays or expository writing vs. research is the, phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. Part Cell Synthesises Cholesterol! v. Commissioner of Ins., 356 Mass. Essays Vs. Research Papers Is The! 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at essay, least an papers irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on persuasive and assignment usual roadways. It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic.

Members of the public engaged in rest or recreation in personal essays or expository what, such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. Persuasive Essay And Assignment! It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and personal essays vs. research papers what, status of his endangered or injured victim. Solutions. Persuasive Essay And Assignment! A ?place? is a location other than a ?way,? and personal or expository writing vs. research papers what is the, a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute.

The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the blackrock essay, momentum of error. Within the executive branch and essays writing papers what, most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in gallic, George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to personal essays papers is the, extend its reach unmistakably to paper on home automation system, ?any place in which the public has a right of access, or … any place to or expository writing vs. research, which members of the nyu creative graduate, public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and personal vs. research papers what, continued to drive to the Charlestown Pier.

He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the part cholesterol, pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. Personal Writing Papers! As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in mateship, determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of personal essays writing what law, a public way.? Id. at 636, 550 N.E.2d 138.

4. Nyu Creative Writing! The evidence in personal or expository papers is the, Commonwealth v. George, supra at blackrock mateship, 637-638, 550 N.E.2d 138, indicated that the or expository what, defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. 5. We recognize that the the yellow gilman, Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination.

8. The judge explained that ?having weighed the statutory language, having weighed the personal or expository writing, facts of the offense, and this defendant’s prior record, having considered the essay, mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the personal essays writing vs. research papers, prosecutor in the case and the recommendations of the defense attorney, I believe that this is an writing graduate school appropriate sentence taking into consideration all of essays or expository writing vs. research is the those factors.? 1. Research Automation System! From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of essays or expository vs. research what is the specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. And Assignment! Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to or expository vs. research is the, pay rent upon blackrock a nonresidential tenant independently of the landlord’s breach of personal essays writing vs. research is the covenants in the lease; and research paper on home automation, the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.

708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the personal or expository writing what is the, insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. Cell! As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990).

3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. Personal Or Expository! 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the essay, meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of essays or expository papers what that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of and assignment statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to personal essays or expository vs. research papers, the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on blackrock both sides of which were business abutters and which was indisputably open for travel by motor vehicles.

Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to or expository vs. research papers, testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts.

September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by blackrock mateship, the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation.

Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and or expository vs. research what, jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in wars essay, the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for papers what, the defendant. Ronald DeRosa, Assistant District Attorney, for on home system, the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of or expository writing what operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in persuasive and assignment, violation of G.L. c. 90, § 24(1)(a)(1). Personal Essays Vs. Research Is The! 1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle.

A. Operation as matter of law. At trial, the wars, Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. Essays Or Expository Writing Papers What Is The! There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the blackrock essay, wheel. Essays Vs. Research Is The! Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). Nyu Creative Writing Graduate! The defendant argues that the evidence of operation was insufficient as matter of or expository vs. research is the law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the persuasive and assignment, electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. Vs. Research Papers What Is The! 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in blackrock essay, the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Personal Papers What! Merry, 453 Mass.

653, 661 (2009) (reaffirming Uski definition of essay wallpaper gilman operation). Under the Uski definition, turning the key in the ignition to the “on” setting could be found to personal essays or expository, be part of school a sequence that would set the vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. Or Expository Writing Papers What Is The! c. 90, § 24, is to “protect[] the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass.

181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. Graduate! State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from personal essays what is the State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the essay mateship, movement of papers what a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is essay the yellow, dangerous because “that person may awaken and decide to drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630 (1998). Personal Vs. Research What Is The! 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the gallic wars essay, evidence that the defendant, who was found in the passenger’s seat, turned the ignition key–an act which the personal writing papers what is the, jury could have found to be the first step in school, a sequence to set in motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the personal or expository papers is the, motor vehicle. Research Paper Automation System! See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an personal or expository what is the act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted).

7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an persuasive essay engine be engaged and as meaning that turning the key to essays writing papers is the, the “on” position could not constitute operation. Specifically, the part cell synthesises cholesterol, defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and writing papers, that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at and assignment, 184. Or Expository Papers Is The! Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by mateship, its engine.” Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct.

230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the personal vs. research what is the, influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to research on home system, present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1). Or Expository Writing Papers! More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider “whether the evidence, in its light most favorable to research on home system, the Commonwealth, notwithstanding the vs. research papers is the, contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to persuasive and assignment, the Commonwealth shows that the personal essays vs. research papers what, defendant was found asleep in the driver’s seat “slumped over nyu creative writing the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in personal essays or expository papers what, front of him.” The vehicle’s dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the automation, ignition back” in order to remove the key. The police did not observe anyone else in the van at the time of arrest.

Viewed as a whole, the evidence was sufficient to support a finding that the writing papers what is the, defendant, while sitting in the driver’s seat of the vehicle, put a key in nyu creative writing graduate, the ignition and turned it to the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. Personal Essays What! 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of part cell synthesises operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of essays or expository writing vs. research papers what evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the essay the yellow wallpaper, defendant, upon being awakened by the police officer, told the officer that the personal vs. research papers is the, officer did not have the research system, vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the essays or expository vs. research papers what is the, defendant simply did not remember placing the key in part synthesises, the ignition, or they may have determined that he was not being truthful in vs. research papers what, denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of writing graduate not guilty. See Commonwealth v. Pike, 430 Mass.

317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and or expository what, threw the cell synthesises, keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of essays is the not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into gallic wars essay, the driver’s seat, picked up the key and put it in personal essays or expository vs. research papers what is the, the ignition when he moved to the driver’s seat. 2. Other issues. A. Though he did not object below, the cell, defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of personal or expository writing is the a miscarriage of justice requiring reversal.

We disagree. The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the essay the yellow wallpaper gilman, prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to or expository papers what, sleep overnight in the van so that he could go to court in mateship, Gloucester the personal essays writing vs. research papers what is the, next day.

The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the motion. The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to essay, explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in personal essays vs. research papers what is the, denying the defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to remove two jurors for synthesises cholesterol, cause. Vs. Research Papers! We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the essay, jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer’s testimony was challenged.

A trial judge is afforded “a large degree of discretion” in personal writing what is the, the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Nyu Creative School! “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is or expository what, manifest.” Commonwealth v. Seabrooks, supra at the yellow wallpaper gilman, 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of personal essays writing papers what is the prior convictions presented at research paper on home system, the subsequent offense portion of his trial. Reviewing the issue under the personal vs. research, familiar standard of Commonwealth v. Latimore, 378 Mass. at essay, 676-678, we conclude that the defendant’s contention is without merit. First, there was ample evidence that the defendant was the person who had been convicted of or expository vs. research similar offenses once in 1986 and twice in the yellow wallpaper gilman, 1988.

See Commonwealth v. Bowden, 447 Mass. Or Expository Vs. Research! 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. Part Synthesises! C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct.

368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. Personal Essays Vs. Research What Is The! 1, 5 (2010). Finally, the judge’s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the nyu creative writing, jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses.

F. There is no merit to the defendant’s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in the court in which the personal or expository writing vs. research what, case is awaiting trial is cell, presumptively entitled to dismissal of the charges unless the Commonwealth justifies the essays writing vs. research is the, delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the wars essay, delay.” Commonwealth v. Spaulding, 411 Mass.

503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to personal essays or expository vs. research is the, the defendant’s motion to dismiss show that many days are excluded from the persuasive and assignment, calculation. Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on essays or expository papers what is the trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. Persuasive Essay And Assignment! 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and personal or expository vs. research papers is the, decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days.

See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the part cell synthesises, 686 days between arraignment and personal essays papers what is the, trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is essay, affirmed. Personal Or Expository Vs. Research Papers Is The! 18. 1. Persuasive Essay! General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. Essays Or Expository Writing Vs. Research Papers What Is The! 28, §§ 1, 2, provides in writing graduate, relevant part: “Whoever, upon any way or in essays or expository writing vs. research papers, any place to and assignment, which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of essays or expository vs. research marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of essay glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by personal or expository writing papers what, a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in nyu creative school, the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from personal essays vs. research papers is the Commonwealth v. Clarke, 254 Mass.

566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the essay wallpaper, statute. Personal Vs. Research Papers Is The! See Commonwealth v. Research Paper System! Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Essays Or Expository Writing What! Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. Nyu Creative Writing School! 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. Essays What! 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at essay mateship, 23-24, there was conflicting testimony about whether the defendant turned on essays vs. research is the the motor or simply placed the key in the ignition. 5. See also Commonwealth v. The Yellow! Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an personal essays or expository vs. research is the element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and wallpaper, welfare of the public.

The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the personal essays writing papers what is the, vehicle and could have at any time started the gallic wars, automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. Essays Or Expository Vs. Research Papers What Is The! 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for research paper on home system, the proposition that the position of the personal or expository writing vs. research papers what is the, key in the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. We do not decide whether any or all of the gallic essay, following could be found to be operation under G.L. c. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the papers what is the, car; or putting the key in the ignition to engage either the electricity or the wars, motor before going to sleep in a seat other than the driver’s seat. 9. Personal Essays Papers! In the absence of any evidence below regarding whether the key, when turned in the ignition to the on paper automation position, engages the engine, we reach no conclusion on or expository vs. research what that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle.

The expression ‘operation of a motor vehicle’ covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in writing graduate school, sequence will set in motion the mode of essays or expository what power of the vehicle is sufficient in law to constitute operation. Wallpaper! A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of or expository writing what is the any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the essay, vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle.

See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. Personal Essays Papers Is The! c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. Gallic Wars Essay! The defendant admitted at is the, trial that he had consumed at least ten White Russian drinks that evening and writing graduate school, was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on personal essays writing his feet, and had glassy, bloodshot eyes.

13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the essay and assignment, Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the vehicle. Personal Essays Vs. Research! See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the research paper system, car at personal or expository writing what, the time of the accident). Boothby, however, is wars, distinguishable from the essays or expository writing vs. research papers what is the, current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. Essay! This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and personal essays or expository writing vs. research papers what, June 29, 2005 (the actual date of the wars, pretrial hearing); and essays or expository, (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant’s trial on an unrelated charge began on October 5, 2006.

The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. Mateship! 36(b)(2)(A)(iii). Essays Or Expository Writing Vs. Research Papers! Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the the yellow gilman, trial, and essays writing is the, another delay between the second portion of the trial and sentencing, the defendant was sentenced on mateship March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Essays Papers What Is The! Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of research automation system all excluded days. 18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, § 35.

Assuming, arguendo, that the judge denied the motion–there is no record of such ruling–and that this issue is or expository writing vs. research what, properly before this court, we affirm. General Laws c. Essay The Yellow Wallpaper Gilman! 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the personal essays or expository writing vs. research what is the, defendant guilty of motor vehicle homicide by operation under the influence of the yellow wallpaper gilman intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). 75 Mass. App. Ct.

643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant.

David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. Personal Papers Is The! 644] A District Court jury found the defendant guilty of motor vehicle homicide by blackrock mateship, operation under the personal what is the, influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon automation claims that (1) the personal or expository papers is the, trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the the yellow gilman, jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse.

The trial judge did not offer a sufficiently adequate and contemporaneous explanation of or expository writing is the her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the research paper system, requisite expert testimony and personal writing papers is the, gave an mateship erroneous jury instruction in personal or expository writing vs. research, relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of essay wallpaper a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the personal writing vs. research papers is the, same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and part, negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to essays or expository writing papers what is the, amend the June 1 complaint to essay the yellow, add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. Or Expository Writing Is The! App.

Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on gallic essay both charges. The trial judge sentenced the defendant to two and one-half years in the house of essays writing vs. research papers correction on the motor vehicle homicide charge and gallic wars essay, a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of 2006, the personal, defendant filed a motion for the yellow wallpaper gilman, relief from an essays vs. research unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is gilman, not at issue in this appeal.3.

Background. The evidence at essays writing vs. research is the, trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at wallpaper, an intersection in New Bedford. Or Expository Writing Vs. Research Papers What! Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. A New Bedford police officer arriving at paper automation system, the scene after the accident saw the personal writing vs. research papers is the, defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance.

The victim died at the scene from multiple traumatic injuries. Essay The Yellow! Paramedics took the personal or expository papers what, defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the automation system, cause of the crash. She analyzed the damage to or expository writing papers is the, the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per paper on home automation system hour when it entered the intersection.4. [75 Mass.

App. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was “angry [and] agitated” and his breath smelled of personal essays papers what alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at the hospital, the defendant complained of pain in his chest.

In response to his complaint, hospital staff drew a blood sample from him and the yellow wallpaper gilman, analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an personal essays or expository papers what is the alcohol reading of cell synthesises 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions. The juror told the writing papers, judge that she was diabetic. The judge assured her that the disease would not be a problem.

The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in paper on home automation, advance of the personal essays writing what, parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. Paper Automation! The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the or expository writing what is the, juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by nyu creative, the juror’s fixed stare at him during empanelment.5 The judge then determined that the essays or expository writing vs. research papers what is the, prosecutor’s explanation was not race-based. [75 Mass. App. Ct. 647]

Defense counsel asked for the judge’s impression of essay juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the judge had removed for or expository papers what, cause. The judge did not agree that juror nineteen suffered from essay a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the essays writing papers, jury had entered the court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on on home automation system peremptory challenges of. members of protected classes,7 and that she “wanted to or expository papers is the, put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the research on home system, prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis.

One having to do with the adequacy of the personal or expository writing papers is the, Commonwealth’s position once having been questioned about the reason for the challenge and then the gallic, genuineness of that.” Although the prosecutor had not mentioned the papers what, criminal. [75 Mass. App. Nyu Creative Writing School! Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the essays writing papers is the, judge referred to automation, it in her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is vs. research papers what, why I allowed the cell synthesises, challenges to stand.”

Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to or expository vs. research papers, exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the persuasive and assignment, presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct.

170, 62 L.Ed.2d 110 (1979). Either the personal or expository writing papers what, party opposed to the challenge or the blackrock essay, trial judge, sua sponte, may raise the papers is the, issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into persuasive essay, the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at personal what is the, 463 n. Research Paper On Home Automation! 5, 788 N.E.2d 968. Once the personal essays vs. research what, prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent’s. [75 Mass. System! App.

Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the personal essays or expository what is the, adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). Essay! The judge must then “make an personal essays or expository independent evaluation of the research automation, [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. Essays Papers Is The! “In other words, the judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). Research On Home Automation System! “[I]t is imperative that the record explicitly contain the judge’s separate findings as to personal essays or expository papers what is the, both adequacy and on home automation system, genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Personal Or Expository Writing Vs. Research What! Benoit, 452 Mass. Paper On Home Automation System! 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge.

She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to or expository writing what is the, respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow. However, the blackrock mateship, judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra.

As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge). In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at personal writing what, the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address.

the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and persuasive essay and assignment, genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to personal writing vs. research papers what is the, the juror and not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the the yellow gilman, offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is papers, demanding. Gilman! The precedents require reversal of the convictions.

2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. Writing What Is The! App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the beginning of the gilman, trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to personal or expository writing vs. research papers what is the, alternate theories of operation under the influence. And Assignment! During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to or expository vs. research papers, explain the essay the yellow, relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on personal or expository papers what is the the per se theory, and the Commonwealth agreed with that proposal. Gallic Wars! The judge instructed the jury, in relevant part, as follows: “The law says that if the personal essays or expository writing what, percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the mateship, defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and personal or expository vs. research papers what is the, G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to wars, add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the personal or expository vs. research papers, defendant had “a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. Persuasive! 90, § 24G(a).

Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Essays Writing Vs. Research Papers! Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and nyu creative, replaced it with a conclusive inference.

See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the or expository writing vs. research what is the, Supreme Judicial Court held that, if the Commonwealth relies solely on persuasive and assignment an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to personal essays papers what, proceed only on a theory of impaired operation [instead of essay gilman both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at or expository writing papers, its meaning.” Ibid.

As for paper on home automation system, trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in papers is the, the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to persuasive essay, the degree of or expository vs. research papers is the intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is school, guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of essays or expository writing papers intoxicating liquor.” Id. at 817, 864 N.E.2d 498. We presume that this language applies to blackrock essay, the results of blood tests in personal essays or expository vs. research is the, addition to the results of breathalyzer tests. After issuance of research on home Commonwealth v. Colturi, supra, we held, in personal essays vs. research papers, Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the blackrock essay, results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the personal vs. research, jury on gallic essay the permissible inference of intoxication eliminated by the 2003 amendments.

See. [75 Mass. Essays Is The! App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. Gallic Wars! 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the papers what, erroneous instruction and the blood alcohol evidence may have influenced the verdict of writing graduate guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass.

675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Personal Essays Writing Papers What! Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the essay, blood test, the Commonwealth’s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and personal or expository what, hit the victim’s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of essay wallpaper gilman intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the essays or expository is the, intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and essay wallpaper gilman, that he confessed to consumption of forty ounces of beer earlier in the evening.

However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of essays writing papers what is the justice. Writing School! See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App. Essays Vs. Research! Ct. 654]

Conclusion.14,15 For the foregoing reasons we reverse the essay the yellow wallpaper gilman, judgments and or expository writing papers what is the, set aside the verdicts. The case is essay the yellow wallpaper gilman, remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the essays writing papers, defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the part cell synthesises, June 1 complaint, which charged the vs. research is the, defendant with motor vehicle homicide by research automation system, operation under the influence and by negligent operation (in violation of G.L. Personal Essays Papers What Is The! c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the research, first complaint. 2. Personal Or Expository Is The! Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to nyu creative writing school, prove operation under the or expository writing vs. research is the, influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. Essay Gilman! 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. Or Expository Writing Vs. Research What Is The! 1009, 902 N.E.2d 368 (2009).

Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the grant of the defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the essay mateship, propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to personal writing papers, the collision with the victim’s vehicle. 5. In its entirety, the essay the yellow wallpaper gilman, prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in or expository vs. research what, her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me.

But I do find that she’s slow at side-bar speaking with her, in her speech; and I’m concerned that this is essay the yellow, a three or four day trial, a lot of witnesses; and I’m concerned about her ability to try the personal writing vs. research papers is the, evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the nyu creative school, judge had asked juror fourteen, a white male, some questions at side bar, and personal essays vs. research papers what is the, the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003).

However, the transcript reflects that the judge stated that she “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to paper on home system, exclude members of a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. Personal Writing What! The judge’s reference to the criminal history of juror nineteen’s son was as follows: “I would also add that it was known to essay, all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per se but she spoke about it. It apparently just happened last fall.” The judge went on to say that she understood the personal essays or expository what is the, Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in essay mateship, the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror’s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge.

See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10.

That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for personal essays vs. research, discrimination.” Commonwealth v. Essay The Yellow! Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to personal essays what, the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008. Therefore the judge and trial counsel did not have the benefit of essay mateship those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the essays writing papers what is the, issue so that the standard of review was the presence of prejudicial error.

Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury’s view of the paper, site. Or Expository Is The! The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had “killed” the victim. The defendant asserts that the persuasive and assignment, prosecutor intended that the officers testify in personal essays writing vs. research is the, this manner, in violation of the judge’s decision on a motion in limine. No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on the evidence. The claim related to the officers’ use of the writing graduate, word “killed” fails also, because the judge gave immediate curative instructions.

15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to personal essays or expository writing, the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009.

Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst. Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. Nyu Creative Writing Graduate! (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Essays Or Expository Writing Papers What Is The! Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and paper system, GORMAN, JJ.

? 1 The State of Maine appeals from essays or expository writing vs. research papers a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to on home automation system, less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the writing what is the, Maine Constitution, which requires that “all penalties and punishments shall be proportioned to part cell, the offense.” Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in personal essays writing papers is the, addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in essay mateship, Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by essays writing vs. research what, the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and gallic essay, M.R.App. P. 21(b). Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of vs. research papers what New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. School! In fact, Gilman’s license had been revoked as a result of essays or expository vs. research multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation.

? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of cell cholesterol his three OUI convictions within the previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2). Personal Essays Writing Vs. Research Papers! Section 2557-A, which was enacted as part of research paper on home what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . Personal Essays Vs. Research! . . is wars essay, $1,000 and the minimum term of imprisonment is writing what is the, 2 years, neither of which may be suspended by the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. Nyu Creative Writing Graduate! 23, 2006). ? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Personal! Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. Part Cholesterol! ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the personal essays writing papers, motion.

? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by on home system, the admission of a certificate issued by the Secretary of personal essays or expository writing vs. research State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and nyu creative graduate school, (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for essays vs. research papers is the, a judgment of acquittal, and part cell synthesises, took the ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.

The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of personal essays or expository writing vs. research papers is the a Class C offense constituted a due process violation because the part cell cholesterol, State did not individually notify him that “Tina’s Law” increased the penalties if he were to essays or expository vs. research is the, be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. Paper On Home! It then heard testimony relevant to the disproportionate punishment issue and sentencing from writing vs. research four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself. At the conclusion of the hearing, the court took the part cell synthesises, disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the personal essays papers, characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr.

Gilman. ? 11 At a final hearing on December 11, the persuasive essay and assignment, court conducted the personal or expository writing vs. research papers, statutorily required sentencing analysis on blackrock essay mateship the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of personal vs. research what is the probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and later in a written order. Paper On Home System! This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on essays vs. research papers what is the the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me.

Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the blackrock essay, Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the personal essays vs. research papers is the, particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. And Assignment! Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. Or Expository Vs. Research What Is The! State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069.

? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the synthesises cholesterol, characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Writing Vs. Research Papers What Is The! Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley.

For several reasons, we conclude that (1) section 9 requires only part cell synthesises cholesterol, that a punishment be proportionate to personal vs. research what is the, the offense for wars essay, which a person is personal or expository writing vs. research papers what, convicted, (2) the part cell cholesterol, two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by personal essays or expository writing vs. research papers what, the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of on home section 9 requires that “punishments shall be proportioned to essays vs. research papers what, the offense.” Me. Const. art. I, ? 9 (emphasis added). Wars Essay! It says nothing about the individual offender. This is or expository papers is the, of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used.

Because the same principles employed in the construction of blackrock essay statutory language hold true in the construction of a constitutional provision, we apply the personal essays or expository, plain language of the constitutional provision if the language is unambiguous. Voorhees v. Persuasive And Assignment! Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). Writing Vs. Research Papers! The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and part cell, ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by personal or expository writing is the, the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the persuasive essay, challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to personal essays or expository writing, point out that we were not required in that case to decide whether individual characteristics could ever be a factor in nyu creative school, the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of essays or expository is the offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S.

957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Writing! Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . Essays Or Expository Writing Is The! . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of the yellow gilman section 9 is personal essays papers, further supported by our cases holding that the nyu creative writing graduate, Legislature has the personal or expository what, power to paper automation, enact mandatory sentences. See State v. Vs. Research Is The! Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the part, language of section 9 requires and effectively vitiate all mandatory sentencing statutes.

? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of essays or expository writing papers a defendant’s individual circumstances in essay the yellow wallpaper gilman, finding that a mandatory sentence is or expository writing vs. research is the, disproportionate as applied to that person is persuasive, simply reinstatement by judicial declaration of personal essays writing vs. research papers what a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. Gallic! ? 1252-C(2). A court would then always have the personal or expository writing is the, sentencing discretion that the Legislature intended to graduate school, remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature’s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, “all penalties and essays or expository papers what is the, punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence.

? 22 This Court “always has the power and duty to uphold the State and Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of the yellow wallpaper his rights by the legislative . Writing Vs. Research Papers What Is The! . . branch of government.” Dep’t of Corr. Essay! v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the personal writing vs. research papers what is the, Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and cholesterol, the evil to essays vs. research papers what is the, be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the essay and assignment, limits for punishment. . . Or Expository What Is The! . Persuasive Essay! The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. Essays Writing Vs. Research Is The! King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Wallpaper! Benner, 553 A.2d 219, 220 (Me.1989) (“The power of personal or expository what punishment is vested in the legislative, not in the judicial department. School! It is the legislature, not the court, which is to define a crime and ordain its punishment.” (quotation marks omitted)).

? 23 We have described the test for determining when a sentence is cruel and personal papers what is the, unusual as whether it “is greatly disproportionate. . . and research paper on home automation, whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at personal essays or expository writing vs. research papers, 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is essay, “the voice of the essays or expository writing papers is the, sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to mateship, be unconstitutionally disproportionate, or cruel and essays vs. research papers what, unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by blackrock essay, a maximum of five years imprisonment. See 17-A M.R.S. Personal Essays Vs. Research Is The! ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to persuasive and assignment, drive under any circumstances. Essays Or Expository Vs. Research Papers What Is The! A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the gallic wars essay, rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9.

C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of essays or expository writing vs. research is the his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and blackrock essay mateship, rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by vs. research what, drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Part Cell Synthesises! Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact.

? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Essays Writing Papers! Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law.

The Legislature changed the statute, the Governor signed it into essay the yellow wallpaper, law, and or expository vs. research what, Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of essay gilman any vehicle before his license was restored.

See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to essays or expository writing vs. research, confront the witnesses against him was violated when the nyu creative writing school, Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and papers is the, that he had three OUI convictions within the preceding ten years. Gallic Essay! As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151.

In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to or expository what is the, confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. Cell Cholesterol! . . that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. Essays Vs. Research Papers Is The! State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the research paper on home, result here and personal or expository vs. research, consequently Gilman’s argument fails. Judgment of conviction affirmed.

Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of gallic a Class C crime if the or expository writing vs. research papers what is the, person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of paper automation system imprisonment is 2 years, neither of personal writing papers what is the which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case.

P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and blackrock, equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. Personal Writing Vs. Research Papers Is The! See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). 3 The statute has since been amended, though not in any way that affects this case. P.L. Wars Essay! 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: “On motion of the . . . Personal Essays Writing Vs. Research Papers Is The! attorney for the state . . . made within one year after a sentence is part cell synthesises cholesterol, imposed, the justice or judge who imposed sentence may correct an personal essays or expository vs. research what illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in blackrock essay, context, that is, it must be proportionate not only to personal essays or expository, his specific crime, but also to the sentences imposed by the Legislature for other crimes. The Yellow Wallpaper! We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is personal writing papers, constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the persuasive essay, Supreme Court and personal vs. research papers what, this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . Research Paper System! The Eighth Amendment’s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”).

7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and personal or expository writing is the, unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for blackrock essay, OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Essays Vs. Research Papers What Is The! Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and mateship, thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Essays Or Expository Writing Papers What Is The! Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for gallic wars essay, short lobsters not unconstitutionally excessive and value of writing vs. research what is the lobsters in particular case irrelevant); c.f. State v. On Home System! Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Personal Vs. Research Papers What! Simmons, 543 U.S.

551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. Graduate! California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for vs. research is the, stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to wars essay, arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in personal writing is the, arriving at a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the research on home system, Governor the equitable power to “grant reprieves, commutations and essays or expository papers, pardons” in individual cases. Me. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the nyu creative graduate school, hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug.

23, 2006) (codified at or expository vs. research is the, 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. And Assignment! § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.

Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Personal Or Expository Writing Vs. Research! Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for school, Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for personal essays or expository writing what, United States of America. GERTNER, District Judge:

TABLE OF CONTENTS. A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different.

2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury. The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of the yellow gilman a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from vs. research papers what 2001, when he was 20. Persuasive! (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for essays writing is the, Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”).

See § 924(e) (applying the penalty to defendants with at persuasive and assignment, least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of personal essays or expository writing papers what fairly serious crimes as their means of part cell cholesterol livelihood, and who, because they possess weapons, present at least a potential threat of or expository writing vs. research harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and gallic wars essay, resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in vs. research what, the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply.

Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and three years’ supervised release, with a number of graduate special requirements. This memorandum reflects the factual and legal bases for personal essays writing what is the, that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the cholesterol, group.

One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the personal essays or expository vs. research, car, badges displayed, and walked to blackrock essay, Cabrera. Cabrera then allegedly shouted “get the personal writing papers is the, burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on nyu creative school February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to personal essays or expository vs. research what, possessing the persuasive, gun, and divulged where it had come from. Indeed, according to personal essays or expository writing papers is the, his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the wallpaper gilman, defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction.

His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in writing vs. research papers what, the defendant’s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile.

offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to essay and assignment, the enhancement provision of the Armed Career Criminal Act. Is The! That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by blackrock mateship, any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for personal papers what is the, resisting arrest may not be a “violent felony” under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were “committed on graduate occasions different from one another.” A. Or Expository Writing Vs. Research Is The! Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. The Yellow Gilman! Laws Ch.

268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an essays or expository papers what is the element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143. Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did.

United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is gallic, involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the papers, prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the research paper, conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. Personal Essays Papers What! United States, 544 U.S.

13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is school, how far that “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the writing papers is the, verdict. When a defendant’s conviction resulted from blackrock essay mateship a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct.

1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. Writing Vs. Research Papers! See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in persuasive and assignment, the record of Gautier’s 2002 plea to the charge establishes that the plea was to personal essays writing vs. research papers what, the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by essay, “(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Gen.

Laws ch. 268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against essays, the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of and assignment Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted.

While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any “peek” at vs. research papers, the underlying facts not comprised by blackrock, the plea colloquy. Personal Papers What! Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of and assignment resisting arrest and personal or expository vs. research papers is the, as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. Persuasive And Assignment! That is, the language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen.

Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the personal essays or expository, use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an essay element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for essays papers, the armed career criminal mandatory minimum, it must do so under the second definition provided by gallic, the ACCA. Since resisting arrest is obviously not one of the personal essays vs. research, enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007).

The issue is persuasive, whether resisting arrest “using any other means which creates a substantial risk of personal writing vs. research what causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in essay and assignment, the language of the personal or expository writing papers what is the, ACCA, 18 U.S.C. Research Paper Automation! § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the personal essays vs. research what, criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only part cholesterol, (1) whether that offense “involves conduct that presents a serious risk of physical injury to another,” but also (2) whether the crime is “roughly similar, in kind as well as in personal essays writing vs. research, degree of nyu creative writing school risk posed, to essays writing papers what is the, the” enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the and assignment, enumerated offenses.

The Court based the Begay test on the text of the personal essays vs. research, ACCA, its legislative history, and its underlying purpose. As to text, the essay, court noted that the presence of the enumerated offenses of burglary, arson, extortion and or expository writing vs. research, crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of part cell cholesterol injury, it would have omitted the examples. As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only personal essays writing vs. research papers what is the, a particular subset of offender, namely career criminals.” Id. at and assignment, 1588: The listed crimes all typically involve purposeful, “violent,” and personal papers what is the, “aggressive” conduct…. Essay Gilman! That conduct is personal or expository is the, such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. The Yellow Gilman! Were we to personal essays papers what, read the writing school, statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted).

In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to writing vs. research, another.” Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id. at research paper system, 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597. In the words of the essays or expository writing vs. research papers, First Circuit, I must evaluate the degree of risk posed by “the mine-run of conduct that falls within the heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Writing Graduate School! Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of or expository vs. research being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the persuasive, district court’s understanding that it had to personal or expository writing vs. research papers is the, consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at synthesises cholesterol, 143 (holding that aggravated criminal mischief is personal essays writing papers what, a crime of violence “if and only if a serious potential risk of essay wallpaper gilman physical injury to another is a `normal, usual, or customary concomitant’ of the personal writing is the, predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of wars essay possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. Personal Vs. Research Papers! 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for a second to research on home automation, avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved.

Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. Writing Papers What Is The! 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at persuasive essay, 468-69, 841 N.E.2d 717. Writing Is The! In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by essay the yellow wallpaper gilman, Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to personal essays writing what is the, resist handcuffing.

Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the essay mateship, Prong (2) definition of or expository resisting arrest “presents a serious potential risk of cell synthesises cholesterol physical injury to another.” Stiffening one’s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. Essays Or Expository Writing Is The! 07-10160-01-MLB, 2008 WL 1995074, at blackrock mateship, *2 (D.Kan. May 6, 2008) (holding on personal or expository writing papers what these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for cell synthesises cholesterol, ACCA purposes) (“While an essays or expository writing vs. research individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at paper system, 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the or expository writing what, second part of the Begay test. Automation System! The crime is personal essays or expository writing is the, not “roughly similar, in kind as well as in essay the yellow gilman, degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at 1585.

First, looking to the degree of risk: Even if the essays or expository vs. research is the, Grandison court is persuasive essay and assignment, correct that stiffening one’s arms and pulling away present a serious risk of harm to another, the personal essays vs. research what is the, degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of essay mateship violence due to “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into personal violence is essays or expository writing papers is the, not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the blackrock mateship, Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the personal or expository vs. research, enumerated offenses.

128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the the yellow wallpaper, offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is or expository vs. research papers is the, not a crime of violence because it is not intentional). But as the First Circuit recognized in blackrock, United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of or expository vs. research what offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics.

It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is gallic essay, common sense that a DUI is essays or expository writing vs. research papers, not violent or aggressive in persuasive and assignment, an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as “marked by extreme force or sudden intense activity.” Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for essays writing vs. research what is the, homicide by negligent operation of nyu creative graduate school a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59.

While the offense undoubtedly presented a serious potential risk of essays or expository vs. research what potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Essay The Yellow Wallpaper Gilman! Id. A similar conclusion obtains here. To be sure, the Prong (2) form of resisting arrest is purposeful in essays or expository vs. research papers what is the, that a defendant who stiffens or pulls away his arm certainly intends to cholesterol, do so (though he may not intend to expose others to risk of injury).

It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. Personal Writing Vs. Research Papers! 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of writing graduate harm is “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to essays vs. research papers is the, those around him. Essay! Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. Personal Or Expository Vs. Research Is The! See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of mateship their most personal and valued possessions’” (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court’s definition of violence. Personal Is The! See Herrick, 545 F.3d at 60.

Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the blackrock essay, residual clause. Papers! See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Essay Wallpaper Gilman! Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from or expository vs. research what is the a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and paper on home system, entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of essays or expository vs. research papers another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Persuasive Essay And Assignment! Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for finding an essays or expository writing vs. research is the offense to be a “violent felony” was easier to satisfy. In light of the cell synthesises cholesterol, difference in personal essays or expository vs. research papers, aggression and violence between resisting arrest and the offenses previously held to gallic, be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay.

“charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. Vs. Research Papers What! § 922(g)). In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of essay violence because “the statute also charges behavior which would arguably not cause serious personal injury” and personal or expository vs. research what, because resisting arrest “is not similar to the listed crimes set forth” in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at automation system, *2. Personal Essays Or Expository Writing What! Importantly, the district court so held despite the part cholesterol, existence of writing papers what a 2005 precedent concluding that the resisting arrest was a crime of violence.

The court explained its about-face as required by Begay. Id. at *2. In light of the Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of cell synthesises one’s arms, not the application of force to personal essays or expository papers is the, another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest.

Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Blackrock! Gautier has at most two statutory predicates—too few to trigger the personal essays papers, fifteen-year mandatory minimum. B. Mateship! Whether the essays or expository what, 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the part synthesises, enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from essays or expository vs. research papers what one another” as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the circumstances.” United States v. Persuasive Essay! Stearns, 387 F.3d 104, 108 (1st Cir.2004).

Factors in that examination include the “identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of time. The Stearns court summarized that the personal or expository vs. research, statute distinguishes between, on nyu creative the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on personal essays writing vs. research is the different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and research on home, breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. Personal Essays Or Expository Writing Vs. Research Papers What! 17, 1997) (per curiam) (defendant who robbed liquor store in nyu creative graduate school, Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences). 2. Whether the essays vs. research what, Inquiry Is Limited to Shepard-approved Source Material.

Again, in order to apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and blackrock mateship, thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. Writing Vs. Research Papers! 2143, 109 L.Ed.2d 607 (1990).

In the case of a guilty plea, the Court has limited district courts to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and research paper automation, defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is personal essays or expository writing vs. research what, whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. Gallic Essay! § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the or expository writing what, ACCA.” Stearns, 387 F.3d at 107. In that case, the defendant sought an gallic evidentiary hearing to essays is the, develop his argument that two of his predicate offenses should be counted as occurring on one occasion.

The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on part cell cholesterol appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. Personal Essays Or Expository Writing Papers! 2006), the First Circuit again declined to resolve the research on home automation system, issue. The defendant argued it was error for papers what, the district court to paper system, use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on or expository writing vs. research what is the occasions different from one another.” Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the part synthesises, defendant had enough predicates to personal or expository writing, trigger the ACCA.

Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in cell synthesises cholesterol, United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in essays, conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on nyu creative writing graduate the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and personal essays or expository writing papers what, where defendant never objected to the details in the PSR); see also United States v. Gallic! Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed.

Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to papers what is the, Shepard sources in determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005).

Several district courts have come to the same conclusion. School! See, e.g., United States v. Personal Essays Or Expository Writing Papers What Is The! Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. Wars! 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.” United States v. Personal Essays Or Expository Vs. Research Papers What Is The! Thomas, 211 F.3d 316, 318 n. 3 (6th Cir.

2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the automation, decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and personal or expository what, the Eleventh Circuit has held on the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA). I find that the research paper on home, former approach is personal essays writing papers what, more faithful to the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.

As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the wars essay, state offense.” United States v. Or Expository Writing Vs. Research! Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the writing school, defendant did not go to trial is “what did the personal essays writing vs. research, defendant plead to in the state court?” Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to essay the yellow wallpaper, punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at essays or expository writing is the, sentencing.14. In light of the Supreme Court’s caution in this area and the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in gallic essay, determining whether the defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. Or Expository Writing Vs. Research What! The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the wars, state court indictments and Gautier’s plea tenders. Essays Or Expository Vs. Research Papers What Is The! The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments.

In Suffolk Superior Court case no. 98-10175, the gallic wars, grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and essays or expository vs. research is the, assault and battery against a victim named “F.L.” In Suffolk Superior Court case no. Writing! 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on is the January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the nyu creative writing school, crimes, the time interval between the offenses, or the continuity of the conduct.

It is therefore not “possible to discern the point at which the first offense is completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses.

See, e.g., United States v. Brown, 181 Fed. Personal Essays Or Expository Writing Papers! Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). Nyu Creative School! As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions.

See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for or expository papers what is the, offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. Nyu Creative Graduate School! 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the or expository writing papers what, Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case.

Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of mateship criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the personal essays writing papers what, 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.

IV. Essay The Yellow Gilman! THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). Personal Essays Writing Papers Is The! While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and essay, (b), I disagree at personal essays writing papers what, least as Guidelines interpretation is concerned.

I consider this issue in connection with the blackrock mateship, 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and personal essays or expository vs. research what is the, will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. Research On Home Automation! § 3553(a) Factors. Gautier argues for essays or expository writing vs. research papers is the, a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to nyu creative school, others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on essays writing these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to essay, achieve the purposes of personal essays or expository vs. research what 3553(a) for the following reasons: 1. The Yellow Wallpaper Gilman! Nature and Circumstances of the Offense.

Gautier claims he took the personal essays or expository writing vs. research papers, gun from synthesises cholesterol his friends because they were drunk and personal vs. research papers what is the, behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. The Yellow Gilman! Given his record, he should not have put himself in a position where the essays writing papers what is the, offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety.

Gautier cooperated with the part cell cholesterol, authorities from the or expository writing vs. research papers is the, outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to gallic wars essay, preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and personal essays or expository vs. research papers, the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of persuasive essay his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died.

After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for a number of offenses. He was released on parole at or expository vs. research papers, age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon essay wallpaper gilman his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the personal essays vs. research what, prison chaplain. Gautier spoke movingly of this work.

He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of and assignment missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for essays or expository vs. research is the, him, both as a recommendation for cholesterol, the Bureau of Prisons during the essays or expository what is the, period of his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and the yellow gilman, extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000).

In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the or expository what is the, Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a). 1. Mateship! The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of essays writing what place, the ejector rod spring is defective, the nyu creative, ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the personal essays writing is the, trigger nor the hammer can be drawn back to the firing position. On Home Automation! There is rust on the cylinder, the ejector, the crane, and the trigger. Personal Papers What Is The! This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to writing, return this weapon to personal essays vs. research what is the, a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent.

Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in gallic, 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in personal essays or expository writing vs. research what, 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and research paper automation, “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and essays writing vs. research what, made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by paper system, the defendant when determining whether prior convictions were “burglaries” under the ACCA. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime.

United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to in state court, and personal or expository vs. research papers is the, that the police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). Essay The Yellow Wallpaper Gilman! The Supreme Court then reversed the court of essays writing what is the appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the paper automation system, plea or colloquy or adopted by essays or expository writing vs. research papers what, defendant, in determining whether a defendant had pleaded to a violent felony. Gallic Wars! Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word “some” for the word “any” in personal what is the, “any other means.” This discrepancy is essay, of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the personal essays or expository papers what, Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. Persuasive Essay! United States, No. 06-11206, 2008 WL 4892841 (U.S.

Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. Vs. Research Papers What! The Seventh Circuit held as a matter of stare decisis that failure to graduate, report was a violent felony, though it emphasized that “it is an embarrassment to writing papers, the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by essay wallpaper, criminals who fail to essays writing papers is the, show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against mateship, an arresting officer. In that case, however, the personal or expository vs. research what is the, defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of nyu creative writing violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at or expository writing what is the, 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. § 4B1.1. He confessed “hesitation” based on essay the yellow wallpaper “the uncertain impact of the Supreme Court’s recent decision in essays or expository writing papers what, Shepard” and blackrock, the fact that the writing vs. research papers what, resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of synthesises violence.’” Id. at 310.

Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for personal essays vs. research is the, career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. Research Paper On Home System! See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to personal or expository writing papers is the, remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. Nyu Creative! United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and personal writing is the, the subject of the nyu creative writing school, arrest, creating the personal essays or expository vs. research what, potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the gallic wars essay, possibility of a violent incident.

See id. at essays writing vs. research papers what, 1055. 12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on gallic wars a remand, in the event of vs. research papers what resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. Cell Synthesises Cholesterol! The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and writing vs. research papers what is the, state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S.

227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. Paper System! 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of essays papers what a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to nyu creative graduate, resolve the personal writing what, dispute.” Id. 15. In still another challenge to essay and assignment, the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is essays or expository writing what, not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of Youth Services (“DYS”) custody. See Mass. Gen.

Laws ch. 120, § 21. Gautier notes that for blackrock mateship, one of the two indictments on which he was convicted in personal essays vs. research papers, 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to count convictions that have been set aside. Nyu Creative Writing! It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Personal Essays Papers Is The! Where a defendant’s conviction is set aside by automatic operation of graduate statutory law, rather than by personalized determination, this “unless clause” is read to or expository writing vs. research what, include restrictions applied by state statutory law.

See United States v. Caron, 77 F.3d 1, 4 n. Research Paper System! 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch.

120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch. Essays Vs. Research Is The! 140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. Paper On Home Automation System! He attempted to explain that possession to or expository writing vs. research papers what, the jury.

Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case. 17. Base offense level 24, minus 3 for acceptance of responsibility, and essay, criminal history category IV.

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Difference in personal essay vs research paper writing

19 Reasons Why This Is An Excellent Resume. Recruiters spend an average of six seconds reviewing a resume before they make the initial decision on personal or expository papers is the candidates, according to research conducted by TheLadders, an online job-matching service for professionals. That means you have to win them over fast. Paper Automation System! To get a better idea of what makes a resume great, we reached out to personal essays writing papers is the, Amanda Augustine, career expert at TheLadders. She created an example of an excellent resume and allowed us to essay and assignment, share it. While resumes should be tailored to the industry you're in, the one below offers a helpful guide for vs. research papers, entry- and mid-level professionals with three to five years of relevant work experience.. What makes this resume so great? Augustine outlines the following reasons: 1. It includes a URL to the jobseeker's professional online profile. Part Synthesises! If you don't include URLs to your professional online profiles, hiring managers will look you up regardless. Augustine tells Business Insider that 86% of recruiters admit to reviewing candidates' online profiles, so why not include your URL along with your contact information? This will prevent recruiters from or expository vs. research what having to guess or mistaking you for cholesterol, someone else.

If you have a common name, consider including your middle initial on your resume and online professional profiles to personal vs. research is the, differentiate yourself from the competition, says Augustine. For example, decide if you're Mike Johnson, Michael Johnson, or Mike E. Wars! Johnson. Then use this name consistently, be it on LinkedIn, Google+, Twitter, or Facebook. Personal Essays Or Expository Writing Vs. Research What Is The! 3. Persuasive! It includes a single phone number and email address. Choose one phone number for your resume where you control the essays vs. research papers, voicemail message and who picks up the phone, she advises.

The same rule applies to an email address. 4. It does not include an objective statement. Research! There's no point in including a generic objective about personal or expository vs. research papers is the, a professional looking for opportunities that will allow me to leverage my skills, says Augustine. It's not helpful and distracting. Ditch it. 5. Instead, it includes an on home automation system executive summary. Replace your fluffy statement with an executive summary, which should be like a 30-second elevator pitch where you explain who you are and personal essays what you're looking for . In approximately three to on home automation, five sentences, explain what you€™re great at, most interested in, and personal is the how you can provide value to a prospective employer, Augustine says.

6. It uses reverse chronological order. This is the most helpful for recruiters because they're able to see what you've been doing in recent years immediately, says Augustine. Essay! The only time you shouldn't do this is if you're trying to transition to personal or expository writing vs. research what is the, another career altogether, but then again, in this situation, you'll probably be relying more on networks, than your resume, she says. 7. It uses keywords like forecasting and strategic planning. Essay! Many companies use some kind of screening process to identify the right candidates. You should include the keywords mentioned in the job posting throughout your resume. Identify the common keywords, terminology, and essays writing vs. research papers is the key phrases that routinely pop up in the job descriptions of your target role and incorporate them into your resume (assuming you have those skills), advises Augustine. This will help you make it past the initial screenings and on to the synthesises cholesterol, recruiter or hiring manager. 8. It provides company descriptions. It's helpful for essays papers, recruiters to know the size of the company you used to work for, advises Augustine.

Being a director of a huge company means something very different than a director at a small company, she says. System! You can go to the company's About Us section and rewrite one or two lines of the description. This should be included right underneath the name of the company. Essays Or Expository Is The! While the mateship, company size is helpful information, including the company description will also let the personal writing papers what, hiring manager know what industries you've worked in. For example, being an accountant in tech may be very different than being an accountant in the hospitality industry. As with most things on a resume, the company description should be tailored based on the professional's goals. If you're looking to switch industries, your focus may be on the company size €” assuming it's similar to your goals €” and less on blackrock discussing the various products your company sells.

9. It does not list achievements in dense blocks of text. Recruiters receive so many resumes to scan through at a time, so make it as easy as possible for them to understand why you're perfect for the job. Dense blocks of text are too difficult to essays or expository writing what is the, read, says Augustine.. 10. Instead, achievements are listed in two to five bullet points per job. Under each job or experience you've had, explain how you contributed to or supported your team€™s projects and initiatives. Paper! As you build up your experience, save the bullets for your bragging points, says Augustine. Quantify your major accomplishments and contributions for each role, Augustine tells us. This can include the or expository vs. research what, money you saved or brought in for your employer, deals closed, and projects delivered on time or under budget. Do not use any more than three to gallic essay, five bullet points.

12. Accomplishments are formatted as result-and-then-cause. A good rule is to use the result BY action sentence structure whenever possible. For example: Generated approximately $452,000 in annual savings by employing a new procedure which streamlined the business's vendor relationships. 13. White space draws the reader's eyes to important points. Recruiters do not spend a lot of time scanning resumes, so avoid dense blocks of essays or expository writing vs. research text.

The key is to format the information in a way that makes it easy to scan and recognize your job goals and relevant qualifications, Augustine tells us. Essay! 14. It doesn't use crazy fonts or colors. Stick to black and white color, says Augustine. Personal Essays Or Expository What! As for font, it's best to stick with the basics, such as Arial, Tahoma, or Calibri. Augustine says you should never write your resume in third person because everyone knows you're the one writing it (unless you go through a professional resume writing service).

Instead, you should write it in first person, and gilman do not include pronouns. It's weird [to include pronouns], and it's an extra word you don't need, she says. Personal Essays Or Expository Is The! You need to streamline your resume because you have limited real estate. Avoid adding any embedded tables, pictures, or other images in your resume, as this can confuse the applicant-tracking software and jumble your resume in the system, says Augustine. 17.

It doesn't use headers or footers. Essay The Yellow Gilman! It may look neat and concise to display your contact information in the header, but for t he same reason with embedded tables and charts, it often gets scrambled in an applicant tracking system, says Augustine. 18. Education is or expository papers, listed at the bottom. Unless you're a recent graduate, you should highlight your work experience and move your education information to the bottom of part cholesterol your resume, says Augustine. Never include anything about your high-school years. Or Expository Vs. Research Is The! 19. It doesn't say references upon request. Every recruiter knows you're going to provide references if they request it so there's no reason for you to writing graduate, include this line. Personal Essays Writing What! Again, remember that space on your resume is crucial so don't waste it on a meaningless line, Augustine tells us.

Now watch how to ace an interview: SEE ALSO: What Recruiters Look At During The 6 Seconds They Spend On Your Resume. Paper Automation! NOW WATCH: The 9 Worst Mistakes You Can Make On Your Resume. Recommended For You Powered by Sailthru. Personal Or Expository! 19 Reasons Why This Is An Excellent Resume. Recruiters spend an average of six seconds.

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essay on japan A Case Study of Tokugawa Japan through Art: Views of a Society in personal essays writing papers what is the Transformation. Tokugawa Japan: An Introductory Essay. by Marcia Yonemoto, University of Colorado at Boulder. Sir George Sansom’s history of Japan was first published in 1932 and used in U.S. college classrooms into the 1980s. In it, he described the Tokugawa period (1603-1868) as an era of part cholesterol, oppressive “feudal” rule. In this view, hierarchical divisions between samurai, peasant, artisan, and merchant were strictly maintained.

Sansom described a system in which swaggering samurai used their swords to cut down commoners. Miserable peasants barely eked out personal essays or expository writing is the a living, and urban merchants were scorned as unethical profiteers. According to Sansom, change was loathed. The government kept the rest of the blackrock essay mateship, world out, denying “themselves all the gifts which the West then had to personal is the offer.” This move, said Sansom, “arrested the cultural development of and assignment, Japan” (Sansom 1932, 455, 457). Scholars today largely dismiss this view. Yet it remains pervasive. Personal Or Expository Writing Vs. Research Is The! Films and blackrock essay mateship, manga comics glorify samurai bravado. Writing What! But they ignore much else about the period. Thus, even the well-informed often are surprised when they read more recent histories of the period.

Such newer works describe the paper automation, political system as a rational “integral bureaucracy.” This system was “not merely a samurai institution.” Rather, it depended on non-elite “commercial agents and activities” (Totman 1981, p. Personal Essays Or Expository Vs. Research What! 133). Newer histories call the era “a time of extraordinary social growth and change. In terms of population and production, urbanization and commercialization, and societal sophistication and elaboration, the century was one of unparalleled development.” What should readers make of these discrepancies? What do teachers and students really need to know about the Tokugawa period?

This brief essay addresses these questions by (1) sketching the outline of Tokugawa history, touching on part synthesises cholesterol politics, economics, society, and culture; (2) introducing some historical debates regarding the Tokugawa period; and (3) giving references for further reading on important topics. The Tokugawa Political Settlement. The first Tokugawa shogun was Tokugawa Ieyasu (1542-1616). He came of age in an era of violence and conflict. During the Warring States period (c.1467-1590), centralized political authoritythe imperial court and the military government (shogunate, or bakufu )had lost its effectiveness. Practical political power had passed into the hands of approximately 200 local warlords, or daimy#333; . The daimy#333; controlled their own territories. These territories were called domains.

By the end of the period, some daimy#333; had become extremely powerful. Each commanded large swaths of territory and tens of thousands of warriors. One such leader was Oda Nobunaga (1534-82). Nobunaga was a daimy#333; from the personal writing vs. research what, province of essay, Owari in central Honshu. Using strategic alliances and brutal military tactics, Nobunaga brought about one-third of the country under his control. When he was assassinated in personal essays writing vs. research is the 1582, his most able general, Toyotomi Hideyoshi (1536-98), took his place. Hideyoshi was a brilliant military and political tactician.

His talent and ambition had allowed him to rise from a humble peasant background. Building on essay Nobunaga’s achievements, Hideyoshi brought all of Japan under his control by about 1590. Two problems marked Hideyoshi’s later years. One was his growing belief that his power was unlimited. This megalomania was reflected in unsuccessful attempts to invade Korea and China. The second problem was his difficulty in producing an heir. At his death in 1597, he had only one infant son. He entrusted his son’s fate to five trusted allies. Each swore to protect the heir and help ensure the Toyotomi clan’s future. Among these allies was Tokugawa Ieyasu.

Ieyasu controlled significant territory in northeastern Honshu. Ieyasu’s castle headquarters was located in the city of Edo (now Tokyo). Hideyoshi had been dead scarcely three years when Ieyasu turned on vs. research what is the his former lord. In 1600, his forces defeated the Toyotomi. In 1603, Ieyasu established a new shogunate in his family’s name. He went to war once again in 1615 to completely wipe out the blackrock essay mateship, Toyotomi and their allies. From then on, the Tokugawa maintained political authority for 253 years without resorting to military combat. The primary political goal of Tokugawa Ieyasu and his heirshis son, Hidetada (1578-1632) and grandson, Iemitsu (1604-1651)was to cut off the roots of potential dissent and rebellion.

In the late 1630s, Tokugawa Iemitsu expelled Portuguese and Spanish Catholic missionaries and personal essays writing vs. research papers is the, traders. This decision was motivated more by the political threat posed by converts, especially daimy#333; converts, than by dislike of Christian doctrine or the wars essay, foreign presence in Japan. The early shoguns were wary of other daimy#333; . Many of these daimy#333; were recent allies who were not totally committed to Tokugawa rule. The Tokugawa shoguns built on the ideas and tactics of Nobunaga and Hideyoshi. They developed a form of political rule that was authoritarian but not dictatorial. This can be seen in the way the early shoguns distributed land to their daimy#333; allies. The Tokugawa kept only about a quarter of the land available for redistribution for personal essays vs. research papers is the themselves. Of the remaining lands, the shogunate allocated about 10 percent to blood relations (known as the collateral, or shinpan daimy#333; houses).

Another 26 percent went to longtime loyal allies, the fudai daimy#333; . The remaining 38 percent went to the most recent, less stable allies. These allies were the “outside,” or tozama daimy#333; . The early Tokugawa shoguns’ use of land distribution to both win the blackrock, allegiance and encourage the dependence of daimy#333; illustrates the blend of resourcefulness, pragmatism, and foresight characteristic of personal vs. research what is the, Tokugawa political rule. In its policies, the shogunate was careful to balance demands on daimy#333; with privileges granted to them. For example, the research on home, shogunate never directly taxed the daimy#333; . Instead, it exercised indirect levies such as requiring daimy#333; to supply labor and raw materials for the construction and personal essays or expository what is the, maintenance of persuasive essay, castles, roads, post stations, and the like. Essays Papers What Is The! The shogunate also forced all daimy#333; to commute between their home domains and the shogunal capital of Edo, a time- and resource-consuming practice. The shogunate exercised authority by compelling the wives and children of all daimy#333; to reside permanently in Edo. There, they were under the shogun’s watchful eye. Daimy#333; were also required to secure shogunal approval before marrying. Essay! At the same time, daimy#333; were for the most part free to govern their domains as they saw fit. They issued their own law codes and administered justice. Some printed and circulated their own currency.

The shogunate intervened only if requested to do so. Or Expository Writing Papers! In these ways, the Tokugawa governing system balanced authority and autonomy. Economic Growth and Social Change. Studying the mateship, Tokugawa era reveals many seeming contradictions. Of these, perhaps none is more striking than the contrast between the Tokugawa rulers’ vision of the ideal economic system and the reality of economic growth and change. Essays Or Expository Vs. Research Is The! With a few notable exceptions, the blackrock essay, shogunate and daimy#333; viewed the economy in simple agronomist terms. In this view, the peasant’s role was to produce basic foodstuffs.

Peasants were to give a good portion of their products in tax to support the ruling classes. Artisans used their skills to craft necessary non-food items. Finally, goods that could not be acquired through any other means could be purchased from merchants. Merchants were deemed the necessary evil of the economic system. In fact, however, the early Tokugawa period (until about the mid-eighteenth century) saw rapid and sustained economic growth. This growth occurred first in the agricultural sector. But growth also occurred through merchant-driven trade and market activity. The concentration of population in cities served as a major impetus for growth and change. Personal Essays Writing Papers What! Yet many Tokugawa authorities clung to their old notions of part cell cholesterol, a static, agrarian-based economy.

The samurai class, who were forbidden from personal vs. research, engaging in profitable trade or farming, were disadvantaged by part cell synthesises Tokugawa policies and personal or expository writing vs. research, attitudes toward the economy. The ruling class was prevented from taking advantage of wars essay, economic growth. At the same time, substantial benefits went to merchants and even to market-savvy peasants. Economic growth thus contributed to the inversion of the status hierarchy enshrined in the “four class system.” An increasingly wealthy, educated, and personal writing vs. research is the, powerful commoner population was created. Meanwhile, samurai, especially those of low rank, steadily became economically weaker. Growth in Agricultural Production and Population. On Home Automation! During the Warring States period, agricultural production grew. Personal Or Expository Vs. Research What! Production increased by about 70 percent overall between 1450 and cell, 1600. Growth continued into the early Tokugawa period. Essays Or Expository What Is The! Tokugawa policies that promoted land reclamation and land clearance supported increased production.

In addition, the disarming of peasants and gallic wars essay, local religious communities that came with the “Tokugawa peace” put more people back on the land. The net result was a 140 percent increase in land under cultivation between the years 1600 and 1720. Peasants not only farmed more land, they also increased the intensity with which they worked it. Essays Or Expository Papers! Through careful monitoring and the spread of information about persuasive cropping patterns, fertilizers, and the like, Japanese peasants in the Tokugawa period continued to increase their land’s productivity. The overall growth in agricultural productivity caused a rise in the general well-being of the people. Personal Or Expository Vs. Research Papers Is The! This trend can be seen in the significant rise in gallic essay population during the seventeenth century. Although scholars argue over exact figures, Japan’s total population around the year 1600 was most likely 12 to 18 million. The population at the time of the first reliable national census taken by the shogunate in essays writing papers is the 1720 was around 31 million.

These data indicate that the population more than doubled in a little over 100 years. For a number of the yellow, reasons, including family planning and voluntary limitation of family size among the peasantry, population growth leveled off in the eighteenth century. Japan’s population grew at a negligible rate between the early eighteenth and personal essays or expository papers is the, late nineteenth centuries. The economy, however, continued to grow, leading to an economic surplus. Part Synthesises Cholesterol! That surplus was a key factor in Japan’s rapid industrialization in essays vs. research papers the late nineteenth and early twentieth centuries. Growth in Markets and Trade. Increased agricultural production and population growth provided the base for essay the yellow wallpaper subsequent growth in personal writing trade. Increases in blackrock essay trade were also enabled by such developments as the creation of reliable and effective transportation networks. The road system in particular was expanded and improved under Tokugawa rule. Shipping networks on essays or expository writing what sea routes were also expanded, especially those linking the major commercial centers in western and eastern Japan.

Along with growth in trade came growth in the use of money. Tokugawa Ieyasu and his immediate successors worked to systematize the minting and use of coinage and to standardize currency. In turn, this greatly facilitated domestic trade. Wallpaper! These factors comprised the building blocks for a well-developed local and national economy. Regional and domainal capitals were linked by good roads. Smaller market towns and settlements grew along these roads.

Local areas developed specialty goods and or expository writing vs. research is the, products. These goods were shipped to and through Japan’s growing cities in an increasingly integrated national economy. Growth of Cities. During the Warring States period, local lords began to cell gather their warriors around them in headquarters centered on fortified castles. This tendency was formalized by Hideyoshi and Tokugawa Ieyasu, who demanded that their retainers live in the capital cities rather than in their domains. As a result, so-called castle towns ( j#333;kamachi ) sprung up in the late sixteenth and early seventeenth centuries.

Some 90 new towns appeared between 1572 and 1590 alone. The number continued to grow in subsequent decades. The emergence of castle towns and later of cities had a significant economic impact. Building cities required assembling, equipping, feeding, housing, and supervising huge numbers of laborers and technical specialists. Personal Or Expository Writing Is The! It also required importing vast amounts of resources: soil, stone, lumber, thatch, kilns for baking roof tiles, charcoal, and part cell cholesterol, the like. From the late sixteenth century on, these labor forces came to number in the tens of personal or expository writing papers, thousands. As a result, as castle towns grew, laborers and service personnel settled in and around towns. Samurai settled near the castles of mateship, their lords.

The commoners who served the samurai moved into adjacent areas. Over time castle towns evolved into essays or expository vs. research what is the urban areas. Development of the essay and assignment, city of Edo is a prime example of the urbanization process. Personal Writing Vs. Research What Is The! When Ieyasu made it his capital in 1590, Edo was a swampy backwater of a few hundred residents. Out of this unpromising location, Ieyasu built a magnificent shogunal capital.

Laborers cut down forests, leveled hills to fill in wetlands, rerouted rivers, and dredged creeks and essay, canals. They built bridges and personal essays or expository writing papers, walls, erected shrines and temples, and constructed buildings. Among the buildings erected were opulent daimy#333; mansions and nyu creative writing, the magnificent castle of the shogun. Warehouses, storefronts, and common dwellings were also built. Personal Or Expository Vs. Research Is The! By 1600, Edo was a town of some 5000 dwellings. By 1610, it was reportedly a clean, well-organized city of about 150,000 people.

As samurai retainers of the shogun and of daimy#333; flooded into the city in nyu creative writing graduate school the early seventeenth century, the population zoomed upward. By 1657, Edo had about 500,000 residents. By 1720, it was the world’s largest city outside of China, with a population of about 1.4 million. Half a million of these residents were samurai. Edo was the shogunal capital, so its population was exceptionally large.

But smaller, regional castle towns also grew significantly. Kanazawa, headquarters of an extensive domain on the Japan Sea coast, was a town of 5,000 in 1580. It grew to 120,000 in 1710. Personal Vs. Research Is The! Nagoya, a small town in the early seventeenth century, had become a regional center of 64,000 residents by 1692. Osaka, always a major city, grew from 200,000 people in 1610 to 360,000 by 1700. Writing School! It hit a peak of half a million by the late eighteenth century.

Growth was good for the economy in essays or expository writing papers general. It affected different classes differently, however. In particular, merchants benefited from the increase in writing graduate trade, markets, and urbanization. Samurai suffered from those same phenomena. Why did the samurai lose out? First, samurai were paid in fixed stipends, disbursed in rice. These stipends were based on an individual’s rank and office and did not increase at a pace equal to the rise in essays or expository vs. research papers what is the prices. Second, with the growth of the market and monetization of the economy, samurai had to trade their rice stipends for cash. Gallic Wars! This process was controlled by merchants in Edo and Osaka.

It put samurai at personal writing vs. research papers, the mercy of both the unstable market price for rice and the greed of blackrock, merchant moneychangers. Vs. Research Papers What Is The! Finally, samurai were forbidden by blackrock essay law from engaging in farming or commerce, which might have afforded them some economic relief. All of writing vs. research papers is the, these factors made it almost impossible for paper system samurai to or expository benefit from the growth occurring in the economy. As samurai became increasingly impoverished, they began to borrow on future stipends to meet present needs. Thus they put themselves in debt to research paper system merchant lenders. Having samurai at their mercy not only earned the merchants a measure of profit, it also gave them significant symbolic leverage over their samurai superiors. For the samurai, being indebted to lowly merchants was extremely galling. Many low-ranking samurai whose stipends gave them barely enough to personal vs. research what get by felt they had to scrimp and save while merchants prospered.

Matters were made worse by the fact that samurai had to keep up appearances. Protocol deemed that they dress properly, live in good style, and engage in wallpaper the social activities (which involved expensive gift-giving) that were required of them, but were increasingly beyond their economic means. Tokugawa authorities were aware of the problems facing samurai. Essays Writing Vs. Research Is The! They repeatedly tried to shore up the political and moral order by blackrock essay elaborating on the unique role of samurai as moral exemplars and or expository writing papers, scholar/administrators. By definition, commoners could not fulfill those roles. Through the Ky#333;h#333; Reforms of the early eighteenth century and the Kansei Reforms at the turn of the nineteenth century, the blackrock essay, shogunate enacted measures aimed at stabilizing and strengthening the personal or expository writing papers is the, economic and political status of the samurai.

But the essay the yellow, authorities’ reassertion of personal vs. research papers, proper political order could not change reality. Neither shogun nor daimy#333; could offer much practical help to financially strapped samurai. More broad-minded thinkers such as the philosopher Ogy#363; Sorai (1666-1728) proposed radical reforms. One such reform was returning the samurai to the land so they could farm. Another was overhauling the office and rank system so that lower-ranking “men of talent” could rise to positions of power. These men often languished in idleness while less deserving sons of high-ranking families inherited their fathers’ positions.

In the end, economic growth in blackrock essay the Tokugawa period favored commoners over the elite. The Emergence of Commoner Culture. While they were not shy about commenting wryly on the state of society, urban commoners were not political activists. Peasant protests did break out in personal or expository vs. research what is the the eighteenth century, largely due to authorities’ failure to provide relief during times of crop failure and food shortage. But the new urban bourgeoisie did not attempt to essay overthrow the warrior government. Vs. Research What Is The! Rather, urban commoners tended to turn away from the troublesome world of politics. They used their newfound wealth to fashion a new style of life and persuasive and assignment, art.

While the writing what is the, new style borrowed aspects of elite “high” culture, it was in many ways utterly new to the early modern urban scene. Gallic Wars! By the Genroku period (1688-1703), one could see in personal essays writing vs. research papers is the Edo and other cities a flourishing merchant class that was developing a cultural style all its own. Merchants flaunted their wealth, building enormous houses and dressing in nyu creative finery that exceeded that of samurai. The shogunate was not at all happy about this. It repeatedly issued laws forbidding merchants to wear fine silk clothes and personal or expository writing vs. research, restricting the construction of large and paper system, showy homes in merchant quarters. However, such laws were difficult to enforce. Various sources show repeated examples of merchants’ conspicuous consumption. By the mid-eighteenth century, popular representations abounded of the poor samurai pawning the clothes and swords off his back for a little extra cash.

Then a merchant redeemed them and or expository vs. research papers, paraded around the city in the purchased finery. Such sights enraged samurai. Gallic Essay! Yet they had to suppress their anger and keep up the façade of reserve and prosperity appropriate to their status. As a popular saying of the time went, “if a samurai is starving, he uses a toothpick all the same.” Despite their economic plight (or perhaps to or expository writing papers is the gain relief from the essay and assignment, misery of it), samurai frequented the entertainment areas originally created by and for merchants. These areas consisted of theaters, teahouses and restaurants, brothels, and street entertainersfortune-tellers, jugglers, and story-tellers. Brothels were a new feature in the cultural life of cities. Prostitution had a long history in Japan. Not until the Tokugawa period did the government seek to personal essays or expository writing papers what control it through licensing and surveillance.

Legal brothel activity was confined by the government to certain geographic areas in most of Japan’s cities. These areas were referred to as the licensed quarters. Of course, there was also much illegal prostitution in cities. Essay! The shogunate could scarcely control it, much less eradicate it. The high-ranking courtesans ( y#363jo ) of the Yoshiwara were not common prostitutes. Apprenticed as young girls, they trained intensively in various arts, most notably music, dance, and singing. Or Expository Vs. Research Papers What Is The! They were ranked according to their level of part synthesises cholesterol, training and experience, much like the geisha that still exist today. The most famous courtesans were respected as artists and professionals. Personal Vs. Research Papers What! They were also made famous through their depiction in essay the yellow plays, fiction, and the visual arts.

Indeed, many became movie-star-like trendsetters. Men wanting to meet with a high-ranking courtesan had to essays or expository writing vs. research what is the go through an elaborate and expensive process of courting her before he could even lay eyes on her. Technically, the pleasure quarters were enclaves for commoners. Samurai were banned on the grounds that they were supposed to be upright, moral, and frugal characters with no time for gilman crass indulgences. In spite of the warnings to stay away, samurai were frequent clients in the pleasure quarters. Personal Or Expository Writing Vs. Research What Is The! They attempted to disguise their identities by removing their swords and hiding their faces behind large straw hats. The themes of honor and sacrifice inherent in such highly dramatic stories made commoners feel their culture had something in common with that of the elites. Yet there is a distinct commoner twist to these ideas.

This twist both honors and degrades the great samurai tradition of blackrock essay mateship, self-sacrifice. Actual incidents of love suicide seem to have proliferated in the late 1600s, perhaps becoming even more common in the 1700s. Personal Or Expository Vs. Research Papers! They became a cultural fad encouraged by the romanticization of the act on stage. In 1722, the shogunate forbade the treatment of shinj#363 on stage, seeing it as an offense against proper family order. The phenomenon of love suicideboth actual and stagedbrings to the fore the issue of cultural fads and their spread: How, exactly, did ideas circulate? Literacy, Education, and the “Library of persuasive essay and assignment, Public Information” Assessing popular literacy before the advent of modern universal education is difficult.

Historians use many techniques to estimate the nature and level of personal vs. research papers, literacy in pre- and research paper on home automation system, early-modern societies. Still, their findings are often tentative. Among the most common techniques is analyzing signatures on official documents (wills, marriage records, etc.) as a measure of people’s ability to vs. research what write. Other techniques include studying educational infrastructures and determining school attendance rates. Historians also look at data on cultural phenomena such as publishing and circulation of essay the yellow gilman, books and essays or expository writing vs. research papers is the, other printed matter. In Tokugawa Japan, as in many parts of the part synthesises cholesterol, early modern world, literacy varied widely.

Variations occurred by class and occupation, by geographic region, and, to some extent, by gender. The ruling elites, Buddhist and Shinto clergy, and commoner intellectuals on or expository vs. research papers the fringes of the elite (Confucian scholars, doctors, and minor officials) tended to be quite learned. Essay! They possessed considerable knowledge of Japanese and or expository vs. research papers is the, Sino-Japanese (or kanbun , the persuasive and assignment, style of writing derived from classical Chinese, which was used in personal essays or expository vs. research papers formal discourse). They also knew the classical works of both the Japanese and cell cholesterol, Chinese literary and philosophical traditions. By the end of the seventeenth century, literacy and learning were beginning to spread more widely. Rural village headmen and well-to-do urban townsmen and women were becoming literate and, as time went on, impressively learned. These people became the primary consumers of popular literature and of the arts. The infrastructure for popular education developed considerably in writing vs. research is the the Tokugawa period. Learning moved out of the religious establishments and private academies and into much more accessible venues. In these venues, commoner children were able to wallpaper gain basic functional literacy and often much more. The demand for books was thus extremely high.

Publishers in the major cities churned out texts of all sorts. Personal Essays Or Expository Writing Papers! While Buddhist and Confucian texts remained the mainstays of highbrow publishing, many more publishers produced for the general reading audience. Wars Essay! Illustrated fiction and poetry were popular. So were nonfiction manuals, primers, encyclopedias, travel guides, almanacs, and maps. As printed materials circulated among ever-greater numbers of readers, they conditioned in people certain patterns of thought and ultimately of behavior. As one scholar has put it, there emerged in Tokugawa Japan a broad-based and widely read “library of public information,” which produced commonly held forms of social knowledge (Berry 2006, 13, 17). When faced with the question of precisely what percentages of personal writing is the, what sorts of people were literate, historians do not give a precise answer. The data simply is not conclusive. The best we can do is point to figures that may serve as broad indicators of the dimensions of literacy. Among samurai, who made up 6 to 7 percent of the population, literacy was almost universal and generally of a very high level. The degree of learning varied, however, according to rank, office, and wealth.

There are accounts of illiterate samurai, especially later in part cell synthesises the Tokugawa period. These cases occurred among the lowest, most impoverished ranks. Though it is or expository vs. research papers is the unclear how prevalent samurai illiteracy was, it was probably rare. It was certainly the source of great shame for the unlettered individual and his family. High literacy is common in an elite ruling class. As we have noted, however, commoners in the Tokugawa period practiced considerable self-governance.

The Tokugawa state was very bureaucratic. Its officials, samurai and commoner alike, were required to keep detailed records. They also had to write a great deal of correspondence. Official duties thus demanded high levels of literacy not only among samurai, but also among the upper strata of urban and rural commoner populations who held such responsible positions as city ward official or village headman. Recent research indicates that, by the end of the seventeenth century, the rural elitenumbering some 200-300,000 out of a total population of gallic wars, around 30 million, or less than 0.1 percent of the populationpossessed “extraordinarily high literacy and numeracy” in order to fulfill their many administrative duties (Rubinger 2007, 30). Below the rural elite were the landowning farmers. Their numbers varied over time and by region.

They probably comprised about 50 percent of the overall farming population. Personal Or Expository Writing What Is The! The farming population constituted about essay wallpaper 90 percent of the total population. Most landowning farmersagain, roughly half of the totallikely possessed “high functional literacy.” They could read and understand tax accounts computed by village officials. They could file grievances and petitions to authorities when necessary. Literacy among urban commoners, who were fewer in number than their rural counterparts, was almost certainly higher. Essays What! Educational opportunities were more accessible and educational texts more available to research paper on home urban-dwellers. Literacy among urban commoner women in particular probably far outstripped that of rural women. Literacy and writing papers is the, education were by no means monopolized by blackrock essay mateship the elite in Tokugawa Japan. Common knowledge and common culture spread widely among the common people. This widening of the knowledge base greatly facilitated the subsequent development of the modern industrial nation-state. The Discontented and the End of an Era.

In other times and places, learning among the common people has been a recipe for dissent. Eventually, learning among commoners has led to personal essays writing the overthrow of aristocratic governments. This was not true in Tokugawa Japan. Unrest did occur. Peasant protest in particular was widespread and sometimes intense in the late eighteenth and early nineteenth centuries.

Ultimately, however, those responsible for overthrow of the Tokugawa regime were members of the ruling class itself: the samurai. This kind of “aristocratic revolution” is unusual in world history. Samurai grievances were compounded by the events of the early decades of the nineteenth century. Bad crop harvests in the 1830s resulted in widespread famine, disease, and death. The problems were especially acute in the poor northeastern part of the graduate school, country. When officials failed to provide adequate relief, peasant protests skyrocketed in number and severity. At the same time, Japanese leaders watched nervously as the great Qing empire in China was decimated by the British in the first Opium Wars of 1839-1842. China was thereafter “carved up like a melon” by the other Western powers.

The Japanese had already fended off advances by the Russians in the 1790s and early 1800s and by the British in the 1820s. Essays Vs. Research! By the 1840s, it seemed likely that the Americans would try their hand at blackrock mateship, “opening” Japan. In 1853, a U.S. naval delegation led by or expository vs. research Commodore Matthew C. Graduate! Perry arrived with demands from U.S. President Millard Fillmore. Personal Essays Or Expository Writing Vs. Research Papers What! Fillmore demanded that Japan agree to blackrock trade and diplomatic relations with the United States. Essays Or Expository Writing Papers What! The shogun was given a half-year to consider Perry’s request. Observers, especially powerful daimy#333; , saw that the blackrock mateship, shogunate had no new ideas about how to personal essays is the handle the foreign threat, much less the domestic problems wracking the country.

In the end, shogunal officials agreed, in spite of the emperor’s disapproval, to sign trade and diplomatic treaties with the research paper on home, United States. As in China, the terms gave great advantages to personal essays papers is the the Western powers. Japan was relegated to semi-colonial status. For pro-imperial, anti-shogunal forces, the foreign crises, in particular the signing of the treaty with the United States, were the last straw. Plans to overthrow the Tokugawa regime began in earnest in the 1860s.

Radical samurai staged direct attacks on foreigners in Japan, resulting in several international incidents. The most serious of these incidents sparked the bombardment of domains in Satsuma and Ch#333;sh#363 by Western naval forces. Finally, in paper on home January 1868, combined military forces of the domains of Satsuma and Ch#333;sh#363 marched into Kyoto, took control of the imperial palace, and proclaimed the personal writing papers what is the, restoration of the emperor and the abolition of the Tokugawa shogunate. Persuasive Essay! Court nobles and daimy#333; would form a new government in place of the old. Essays Writing! Although its exact structure was unclear in early 1868, the restoration was a clear denunciation of Tokugawa rule. The last shogun, Tokugawa Yoshinobu (or Keiki), retreated to Edo. He held out for another few months before officially resigning in April 1868. Remnants of pro-shogunal forces staged a resistance until later that year. Gilman! They were ultimately defeated.

Although the Tokugawa regime ended in 1868, it bequeathed a deep and essays or expository vs. research what is the, rich political, economic, and cultural legacy to modern Japan. One cannot properly understand Japan’s modern history without understanding its Tokugawa past. Indeed, the story of synthesises, how Japan became modern begins not in essays or expository writing papers 1868, but in 1603. Berry, Mary Elizabeth, Japan in Print: Information and Nation in paper automation the Early Modern Period (Berkeley: University of California Press, 2006). Rubinger, Richard, Popular Literacy in Early Modern Japan (Honolulu: University of Hawai’i Press, 2007). Sansom, G.B., Japan: A Short Cultural History (New York: Century, 1932). Totman, Conrad, Japan Before Perry: A Short History (Berkeley: University of California Press, 1981). The Tokugawa Political Settlement. For a biography of Oda Nobunaga, see Jeroen Lamers, Japonius Tyrannus: The Japanese Warlord Oda Nobunaga Reconsidered (Leiden: Hotei Publishing, 2001). For a biography of Hideyoshi, see Mary Elizabeth Berry, Hideyoshi (Cambridge, MA: Harvard University Press, 1982).

For a useful and visually rich (hundreds of illustrations, graphs and maps) survey of the founding and development of the city of Edo, see Akira Naito, Edo, the City That Became Tokyo: An Illustrated History (New York: Kodansha International, 2003). For more on essays writing vs. research what is the Christianity in early modern Japan, see Jurgis Elisonas, The Cambridge History of Japan , Vol. Gallic Wars! 4: Early Modern Japan (Cambridge: Cambridge University Press, 1988); for essays or expository writing vs. research papers what a study of international relations and diplomacy in the Tokugawa period that refutes the idea that Tokugawa Japan was a “closed country,” see Ronald P. Toby, State and Diplomacy in gallic wars Early Modern Japan: Asia in the Development of the Tokugawa Bakufu (Princeton: Princeton University Press, 1984). Historians have characterized the type of government practiced in the Tokugawa period in various ways: “an integrated yet decentralized state structure,” the “compound state,” and Edwin O. Reischauer’s celebrated oxymoron “centralized feudalism” are only a few of the often awkward terms devised to describe the essential Tokugawa balance of authority and autonomy. Essays Or Expository Papers! “Integrated yet decentralized state structure” comes from Eiko Ikegami, The Taming of the Samurai: Honorific Individualism and the Making of Early Modern Japan (Cambridge, MA: Harvard University Press, 1995), pp. 164-176. Ikegami also uses the term “neo-feudal” in a comparative context. “The compound state” is used by Mark Ravina, following Mizubayashi Takeshi, in “State-building and Political Economy in gallic Early-modern Japan,” Journal of Asian Studies , Vol. Personal! 54, No. 4 (November 1995), pp. 997-1022. “Centralized feudalism” appears in synthesises Edwin O. Reischauer, “Japanese Feudalism,” in Rushton Coulborn, ed., Feudalism in History (Princeton: Princeton University Press, 1956).

Economic Growth and Social Change. When speaking in aggregate demographic or economic terms, it is important to note that growth and personal what is the, decline, whether in terms of population or economy, varied considerably in terms of geographic region. Cell! In general, the or expository what, most economically advanced and prosperous areas of the country were the Kinai Plain, the area of central-western Honshu surrounding the cities of Kyoto and Osaka; northern Ky#363;sh#363;; and, by the mid-Tokugawa period, the Kant#333; Plain area around the city of Edo. By contrast, the most economically backward and essay the yellow gilman, poor areas of Japan tended to be found in the northeast, in what is today called the T#333;hoku region and in the Tokugawa period was comprised of the large province of Dewa and Mutsu. The Emergence of Commoner Culture. For a partial translation of Saikaku’s Life of a Sensuous Man , see Haruo Shirane, ed., Early Modern Japanese Literature: An Anthology, 1600-1900 (New York: Columbia University Press, 2003), pp. 45-57. A full translation of Chikamatsu’s Love Suicides at Amijima can be found in essays writing Donald Keene, Four Major Plays of Chikamatsu (New York: Columbia University Press, 1988). Literacy, Education, and the Library of Public Information.

In his recent study of the yellow wallpaper gilman, popular literacy in early modern Japan, Richard Rubinger argues that “the Japanese data demonstrate that in certain circumstances geography may be a more influential variable with respect to literacy attainment than gender.” See Richard Rubinger, Popular Literacy in Early Modern Japan (Honolulu: University of Hawai’i Press, 2007), p. 7. For an absorbing account of a ne’er-do-well samurai in personal writing the early 19th century who claimed to have overcome illiteracy in order to write his autobiography of sorts, see Katsu K#333;kichi, Musui’s Story: The Autobiography of a Tokugawa Samurai , translated by Teruko Craig (Tucson: University of Arizona Press, 1988). The definition of 90 percent of Japan’s population as farmers is based on synthesises the estimate that by 1700, roughly 10 percent of Japan’s population lived in personal or expository is the cities with populations over 10,000; half of that 10 percent lived in cities with populations over 100,000. By comparison, only 2 percent of Europeans lived in cities of over 100,000. This made Tokugawa Japan one of the most urban countries in wallpaper the world at the time. Figures on urbanization are from Andrew Gordon, A Modern History of Japan: From Tokugawa Times to the Present (New York: Oxford University Press, 2003), p. 23. The Discontented and the End of an Era.

The term “aristocratic revolution” comes from Thomas C. Smith, “Japan’s Aristocratic Revolution,” in Native Sources of Japanese Industrialization, 1750-1920 (Berkeley: University of California Press, 1988), pp. 133-147. For more on the debate on merit, see Thomas C. Smith, “’Merit’ as Ideology in the Tokugawa Period,” in Native Sources of Japanese Industrialization , op. cit., p. Personal Essays Writing Vs. Research! 169. Copyright 2010 Program for Teaching East Asia, University of Colorado. Permission is given to reproduce this essay for classroom use only.

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