TQ, a 29 year old woman from India with a degree in Computer Science, was apprehended on February 14, 2017 at a store at the Burlington Mall and charged with Larceny Over $250.00. The charge arose out of her stealing a $425.00 pair of designer sunglasses. Normally, stealing at the mall results in a charge of shoplifting (a misdemeanor). In this case, however, the police charged her with Larceny Over $250 (a felony). TQ consulted with and retained Attorney Robert Lewin from North Andover. Fortunately for TQ the police set the charge up for a hearing before a Clerk-Magistrate. This is critical. The police have three choices at the outset of a criminal case: (1) the Police can arrest the individual in which event the person is brought before a Judge for an arraignment on a criminal complaint and a criminal record is created; (2) the Police can release the individual without an arrest and have the court issue a criminal complaint and a summons for the person to come to court for an arraignment in which event a criminal record is created; or (3) the Police can chose not to arrest and not to summons the person to court but rather the police can file an application for a criminal complaint with the Clerk-Magistrate of the Court and request that the Clerk-Magistrate set the application down for a hearing before a Clerk-Magistrate. This third option – which is rarely used when the criminal charge is a felony – gives the accused person a chance to avoid prosecution and avoid a criminal record. In this third option the Clerk decides whether or not a criminal complaint (and summons) will actually be issued against the accused. That is the option the police chose with TQ.
Immediately after being retained Attorney Lewin contacted the store and he contacted the police prosecutor. Attorney Lewin confirmed that the matter was going to be set down for a Clerk-Magistrate Hearing. Attorney Lewin sent the Police Prosecutor a lengthy email setting forth TQ’s family and educational and employment background and the fact that she had never been in trouble before. It was critical to TQ to avoid a criminal record – especially for felony larceny; NO ONE wants to hire a thief and having a Larceny charge on your criminal record brands you as a thief. Attorney Lewin advocated hard with the Police Prosecutor to agree to a disposition of the case that did NOT involve a criminal complaint being issued against TQ.
On March 28, 2017 TQ and Attorney Lewin appeared in Woburn District Court for a Clerk-Magistrate Hearing. Attorney Lewin made a strong pitch to the Clerk-Magistrate not to issue a criminal complaint against TQ. Attorney Lewin was successful in getting the police to agree to ask the Clerk-Magistrate not to issue a criminal complaint. At the end of the Hearing the Clerk-Magistrate continued the hearing for four months and ordered that if TQ remained out of trouble then in four months she did not have to return to court and the application for criminal complaint would be denied and dismissed. As a result of this disposition Attorney Lewin explained to TQ the following;
- She was NOT arrested.
- She was NOT charged with a criminal offense.
- NO criminal complaint was issued against her.
- NO criminal record was created; she still has NO criminal record.
- This case will NOT show up in any criminal record keeping system.
Needless to say TQ left the Courthouse with a big smile on her face; she was very pleased with the outcome.