WX, a 32 year old professional nanny, was hired by a well to do family in Essex County to work as a nanny for their four children. WX worked for the family for 18 months and a strong relationship developed between WX and the entire family. WX was terrific with the children, one of whom was physically disabled. WX and the Mother of the children developed a frienship. The mother bought very high end children’s clothing and accumulated a great deal of new expesnive children’s clothes. WX is a single parent of two of her own children and financially was having difficulties. WX began to steal some of the clothing from the family and over a period of about two months stole in excess of $1,700.00 of the clothing. WX began to sell the clothes online. The mother discovered the online sales of the clothes that she had bought. WX had taken photos (to display the clothes online). Unfortunately for WX she had taken the photos of the clothes in the home where she worked and the mother immediately recognized her home in the pictures. The mother reported this to the police. The police called in WX who confessed. WX received a Notice of Complaint Hearing from Lawrence District Court for Larceny Over $250. WX spoke with several lawyers and retained Attorney Robert Lewin from North Andover.
Attorney Lewin explained to WX that if there is anything that helps make these cases go away it is being able to pay the restitution ($1,700.00 in this case) without delay. Attorney Lewin immediately reached out to the police prosecutor and to the investigating detective and advocated for a disposition of the case at the Clerk-Magistrate Hearing that would not involve the issuance of a criminal complaint. WX was very lucky: (1) Larceny Over $250 is a felony and is an arrestable offense and she could have been arrested the day she walked into the police station. The police did not arrest her; (2) Larceny Over $250 – being a felony – is a crime for which there is no right to a hearing before a Clerk-Magistrate to decide if a criminal complaint will be issued. Normally when a person is accused of Larceny Over $250 the police either arrest or have the Court issue a summons. In WX’s case the police did not arrest nor did they request a summons. (A summons means that a criminal complaint issues without a hearing and a criminal record is created when the person appears in Court for an arraignment on the summons.) The police requested that a hearing take place to decide whether or not a criminal complaint would be issued against WX. Attorney Lewin recognized that this was unusual and felt that perhaps the police and/or the victim family would be willing to resolve the case without a criminal complaint being issued against WX. Attorney Lewin advocated hard with the police to agree to settle the case at the hearing without a criminal complaint actually issuing against WX.
On February 16, 2017 Attorney Robert Lewin and WX appeared at Lawrence District Court for the hearing. Also present were the Husband and Wife from whom WX had stolen the clothes and the Police Prosecutor. The hearing proceeded. The purpose of a Clerk-Magistrate Hearing is simply for the Clerk-Magistrate to determine if there is probable cause to issue a criminal complaint so that the case can proceed in regular criminal court. In an appropriate case – even when there is probable cause – the Clerk-Magistrates have the discretion to not issue a criminal complaint. Attorney Lewin explained to the Clerk-Magistrate and to the Husband and Wife from whom the clothes had been stolen that WX was prepared to pay the $1,700 in restitution immediately. The police (and to everyone’s surprise) the Husband and Wife were agreeable to a criminal complaint not being issued against WX. The issuance of a criminal complaint would have ruined her career as a nanny. No one wants to hire a thief; and having a charge of Larceny Over $250 on your record brands you as a thief. The Clerk-Magistrate hearing the case was at first extremely reluctant to not issue a complaint. He spoke of the breach of trust and the amount of money involved and the taking of pictures of the clothing in the victim’s home. The Clerk-Magistrate gave WX a long lecture, but in the end he went along with Attorney Lewin’s request to not issue the criminal complaint. The Clerk-Magistrate continued the hearing for six months. He ordered WX to pay the $1,700.00 immediately – which she did. He ordered her to perform 20 hours of community service and to not violate the criminal law.