On August 27, 2014, EG, a 58 year old married mother of two children went into the Whole Foods Market in Andover. She filled her shopping cart with about $150.00 worth of food; unfortunately she filled her pocketbook with about $130.00 worth of vitamins. She went through the cash register and paid for the food but did not pay for the vitamins. As she exited the store she was stopped by a loss prevention officer. She was brought back into the store; the vitamins were removed from her pocketbook. The Andover Police were requested by the store and they responded. The Andover Police did not arrest EG but they took her information and told her she would be hearing from the Lawrence District Court. EG is a dental hygienist and she was concerned with the potential effects of having a criminal record. EG retained Attorney Robert Lewin from North Andover.
Attorney Lewin immediately contacted the Police Prosecutor from Andover and obtained a copy of the police report. In addition Attorney Lewin made sure that the case was being set up for a Hearing before a Clerk-Magistrate as opposed to a summons. When a person is accused of shoplifting and the amount in question exceeds $100 the police have two choices. They can file an application for criminal complaint at the Court and request that the Clerk-Magistrate set the application up for a hearing to determine whether or not a criminal complaint will be issued against the accused. The second choice the police have is to file the application for criminal complaint at the court and request that the Clerk-Magistrate issue the criminal complaint without a hearing and issue a summons for the accused to appear before a judge. This is a critical difference. When the application is set up for a hearing then the accused has the opportunity to “kill” the case before it goes any further. When the Clerk-Magistrate conducts a hearing, the Clerk-Magistrate has the discretion to NOT issue the criminal complaint against the accused. If the Clerk-Magistrate does NOT issue a criminal complaint then the accused does not have to go in front of a Judge and, more importantly, NO criminal record is created. There is no publicity of the charge.
On the other hand, if the Clerk-Magistrate decides to by-pass a Clerk-Magistrate Hearing and issues the complaint and a summons then the accused loses that opportunity to “kill” the case, the accused has to appear before a judge for an arraignment in open criminal court, and a CRIMINAL RECORD is created. That is why it is important to advocate with the police at the earliest possible moment to have the case set up for a hearing.
In EG’s case the police agreed with Attorney Lewin’s request and the Application for Criminal Complaint against EG was scheduled for a hearing before a Clerk-Magistrate. On September 18, 2014, EG and Attorney Robert Lewin appeared for EG’s hearing before the Clerk-Magistrate. Prior to the hearing Attorney Lewin had spoken at length with the police prosecutor and had advocated on EG’s behalf for a criminal complaint not to issue. At the hearing Attorney Lewin advocated on EG’s behalf with the Clerk-Magistrate for a complaint not to issue. The Andover Police did not object. The Clerk-Magistrate continued the hearing for four months and as long as EG stays out of the store and as long as she has no violation of the criminal law then she will not have to return to Court and the Application for Criminal Complaint will be dismissed.
As a result of this disposition the following should be noted:
EG was not arrested.
EG was not charged with any criminal offense.
No criminal complaint was issued against EG.
EG did not have to appear in front of a judge.
NO criminal record was created.
It was as if the incident had not happened. Needless to say, EG was extremely pleased with the result. In these shoplifting cases timing and advocacy are important – especially where the amount shoplifted is over $100.00. Timing is important so that the accused’s lawyer can advocate that the case be set up for a Clerk-Magistrate hearing BEFORE the police go and request that the hearing be by-passed. Good advocacy can insure that no criminal complaint will be issued and no criminal record will be created.