SalemNews.com, Salem, MA

July 9, 2013

Judge sends man back to prison after assault on 90-year-old

BY JULIE MANGANIS
STAFF WRITER

---- — SALEM — A Lynn man is heading back to state prison, where he could serve up to 10 years, as a result of his arrest on charges of assaulting a 90-year-old convenience store clerk in April.

Avery Heard, 42, hasn’t admitted to the April 18 incident, but he did admit through his lawyer, that as a result of his arrest, there was probable cause to find him in violation of his probation in an earlier Lynn robbery and assault case.

Heard was released from prison last fall after serving a five-to-six year term for that Lynn case and was on probation when he went into Steve’s Quality Market at 5:45 a.m., attempting to buy beer.

Steve Ingemi, now 91, was behind the counter that morning, and told Heard that he could not sell him the beer until 8 a.m.

Heard punched Ingemi twice, police said, then turned away. Ingemi got in a shot to the back of Heard’s head, and then Heard turned and knocked the elderly man to the floor, police said.

Yesterday, Salem Superior Court Judge John Lu watched the store surveillance footage of the incident before handing down his sentence: one to 10 years in state prison for the probation violation.

The sentence means that Heard can apply for parole after serving a year — but with a 13-page criminal record, the judge warned Heard that he may not win parole and could end up serving the full sentence.

Heard’s probation officer had been seeking three to five years in prison.

Heard’s lawyer, Jeffrey Sweeney, pleaded for a much shorter sentence, in the house of correction rather than state prison. He said his client wanted to do his time at the Essex County Correctional Alternative Center, colloquially known as “The Farm,” and then move to the Lawrence area to live in a sober house and receive treatment.

Sweeney also told the judge that Heard would be eligible for the restoration of his Social Security Disability Income after his release.

Sweeney said his client’s record is largely attributable to alcohol abuse, and that on the morning of the incident at Steve’s, he was in an alcoholic blackout.

While a conviction in a criminal case requires that a judge or jury find evidence “beyond a reasonable doubt,” the standard for finding someone in violation of probation is far less stringent, requiring only that a judge find probable cause to believe the misconduct occurred.

The charge of assault and battery on a person over 60, stemming from the incident, is still pending in Salem District Court, where Heard could receive additional time behind bars if convicted.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.