Articles Posted in Assault with A Dangerous Weapon

TN, a 31 year old website developer, owns a home in Peabody. He rents out rooms in the house. A young woman and her boyfriend rented one of the rooms. Arguments developed between TN and the woman and her boyfriend. TN owns a cross-bow and a bow and arrow set. The tenants filed charges against TN alleging that TN had broken into their room and stole items from their room. The boyfriend also alleged that TN had pointed the cross bow at him and said that he would kill him. TN came to see Attorney Lewin and Attorney Lewin was confident that the charges could be defeated. A hearing before a clerk-magistrate at Peabody District Court was scheduled. An application for a criminal complaint had been filed against TN by the woman and her boyfriend. The application sought to have charges of Assault & Battery by Dangerous Weapon (the crossbow), Breaking and Entering, and Larceny Over $250.00 be issued against TN. To gain leverage TN filed an application for a criminal complaint to be issued against the tenant for larceny.

On June 6, 2017 Attorney Lewin, TN, the woman, and her boyfriend all appeared for a hearing in Peabody District Court before a Clerk-Magistrate. It was important for TN to avoid having a felony charge be issued against him because he works in high tech. At the conclusion of the hearing Attorney Lewin argued to the Clerk that none of these people should want to be in a criminal court. Attorney Lewin argued that this was really a dispute over money between a landlord and his tenants. In the end the Clerk-Magistrate denied the applications for criminal complaint. TN walked out of the Court with no criminal charges being issued against him. As a result of this disposition TN has NO criminal record.

On December 11, 2013 NP, a 52 year old over the road truck driver (2 million accident free miles) was operating a tractor pulling 2 trailers from Manchester, NH to Southboro, MA. As he traveled down Rt.3 he crossed from NH into MA. He was following a woman driving a car in the middle lane. He pulled to the right travel lane and as he began to pass her she speeded up and refused to let him pass. He moved in behind her again and she braked causing him to brake and he then moved again back into the right lane and again she refused to let him pass. He then moved in behind her again and this time she braked hard; he checked his mirrors and knew the left lane was clear and he moved into the left lane (illegal); again she refused to let him pass. Now he moved from the left lane, to the middle lane, to the right lane. Once in the right lane he began to pass her. The lady told the police he drove the truck at her car causing her to swerve left away from the truck. She drove off the road into the grass median where her car came to rest. The truck meanwhile went into the breakdown lane and the second trailer went onto its right side and slid for a distance of about 300 feet. NP told the police that once he was in the right lane the lady swerved to the right toward his truck and then she swerved left and lost control. NP told the police he turned to the right to avoid hitting her car. The police charged NP with the following offenses: Reckless Operation, Assault with a dangerous weapon (the truck)(a felony), Following Too Close, Speeding, Marked Lane Violation, and Left Lane Operation. NP retained Attorney Robert Lewin of North Andover. A conviction would have cost NP his CDL and his livelihood. The State Police had a witness who claimed he was a truck driver who said he had seen the entire scene and in his opinion NP had tried to “kill the girl” in the car by swerving his truck at her. The girl’s boyfriend had been driving his pickup and he told the police that the truck had been tailgating his girlfriend.

On January 26, 2015 the case went to trial in Lowell District Court. A jury was chosen; the girl testified and the State Trooper testified. At the close of the Government’s case Attorney Lewin moved for a required finding of not guilty. The trial judge agreed that on the charge of Assault with a Dangerous Weapon the government had failed to put in any evidence that the girl was put in fear and the Judge ordered a finding of not guilty on the felony assault charge. NP – who had been painstakingly prepared to testify – then took the witness stand and testified. He was a great witness. He looked at the jury when he testified; he took his time; he knew the answer to every question he was asked. There were no questions for which he was not prepared. After he testified both sides rested. Attorney Lewin made an impassioned argument to the jury. The Judge then instructed the jury and at 1:00 PM the jury went out to deliberate. The judge excused everyone for lunch and instructed everyone to be back at the courtroom at 2:00 PM. When NP and Attorney Lewin returned from lunch at about 1:50 PM the court officer came over and told them there was a verdict. At 2:00 PM everyone assembled in the Courtroom. NP and Attorney Lewin stood up and the jury then announced their verdict on the reckless operation charge. They found NP not guilty. The Judge (who decides the civil motor vehicle infractions) then found NP not responsible of the speeding charge, the following too close charge, and the marked lane violation. The only charge NP was found responsible of was the Left Travel Lane Restriction Violation. NP and his family were thrilled with the result. The key to the win was in NP’s preparation to testify.

On October 28, 2013 YL, a 27 year old male Chinese national in the US on a work visa, got into a heated argument with a female roommate (named HR) in their apartment in Malden. Both YL and HR were standing at the stove and they both had items cooking on the stove in pans. It was alleged that YL – in the heat of the argument – raised his pan off the hot stove, poured the water that was in the pan on the floor, and then threatened to hit HR with the hot pan. A third roommate got between YL and HR. YL and the third roommate then left the apartment and HR called the Malden Police. The Malden Police spoke with HR and seized the pan as evidence. YL returned to the apartment while the police were there; he was questioned by the police. According to the police report he admitted picking up the pan and pouring the water out but denied raising the pan and denied threatening HR in any way. The police arrested YL and charged him with Assault with a Dangerous Weapon. This charge is a felony and would subject YL to immediate deportation back to China.

YL retained Attorney Robert Lewin. Attorney Lewin spoke with the third roommate and her statement confirmed YL’s version of what had happened. Attorney Lewin learned that HR was going back to China for at least a three month stay and would be gone during the month of January 2014. Attorney Lewin also learned that the third roommate was moving out of the apartment and her address might not be known to the government. Realizing that bench trials (a trial by a judge alone without a jury) in Malden Court can be had quickly, when the case was called in Court on January 7, 2014, Attorney Lewin requested a bench trial for January 21, 2014. On January 21, 2014 YL and Attorney Lewin appeared in Malden Court and answered ready for trial when the case was called. The Commonwealth had the police present in Court, but neither the victim (HR) nor the third witness were present. Without one of the percipient witnesses present the Commonwealth could not go forward and the case was dismissed. A percipient witness is a witness who was present at the time and place of the alleged crime. Sometimes the timing is just right.

On June 29, 2013 FW, a 41 year old Chinese woman threatened to kill her husband with a kitchen knife and struck him with her hands. He called 911 and the Reading police responded. Once the police arrived at the home it became readily apparent that FW was mentally ill and was experiencing a paranoid break with reality. Rather than arrest her the police submitted a Section 12 Petition (a mental health commitment petition) and brought her to Winchester Hospital, She was then transferred to a mental hospital where she remained in-patient for 44 days. She was diagnosed with paranoid schizophrenia. A regimen of medications was established and her condition improved markedly over the time she was in the hospital. The police filed an application for a criminal complaint for assault with a dangerous weapon (a felony) and for assault and battery to issue against FW in Woburn District Court. FW and her husband retained Attorney Robert Lewin. Attorney Lewin immediately had FW obtain copies of her hospital records. In addition Attorney Lewin obtained reports from FW’s mental health counselor. Attorney Lewin then reached out to the Reading Police and had a substantive discussion with the police about FW’s condition and her case. Attorney Lewin suggested to the police a resolution of the case that did not involve a criminal complaint being issued against FW at the hearing before the clerk-magistrate.The police agreed not to push for the issuance of a criminal complaint at the hearing before the Clerk-Magistrate. On March 18, 2014 Attorney Lewin and FW appeared before the Clerk-Magistrate at Woburn District Court. Attorney Lewin explained to the Clerk-Magistrate that he had spoken with the police ahead of time and the two sides were asking the Clerk not to issue the complaint. The Clerk wanted to see an updated report from FW’s counselor and Attorney Lewin had obtained a report the day before the hearing. Attorney Lewin gave the report to the Clerk who read it and then agree not to issue a criminal complaint against FW. The Clerk stated that if there are no reports of any law violations by FW over the next six months then on September 19, 2014 no one would have to return to court and the Application for Criminal Complaint would be dismissed and no charges would be issued against FW. As a result FW has no criminal record, was not charged, and did not have to appear in front of Judge. In these types of cases good communication between a criminal defense lawyer and the police prosecutor can be the difference between being prosecuted and not being prosecuted. Attorney Lewin’s five years as an Assistant District Attorney and his 39 years practicing criminal defense have given him the experience and know how to deal with all these situations. FW and her husband walked out of Woburn District Court very happy that FW was not charged.

On July 23, 2013, HL, a 50 year old Chinese National, was arrested for Assault and Battery and Assault & Battery with a dangerous weapon. HL and his wife, who live in Andover with their three children, got into a heated argument over money. It was alleged that HL grabbed a large book and began to hit his wife about her head with the book. She sustained minor cuts to her ear and arm. She called the Andover Police who responded immediately. HL had left the home but returned shortly after the police responded. The police spoke with HL’s wife who told them what happened. HL denied striking his wife. The police arrested HL and he was brought to the Andover Police Station. Assault and Battery with a Dangerous Weapon is a felony and is a deportable offense. Assault & Battery can be a deportable offense.This was of great concern to HL as he is not a US Citizen and he could be forced to return to China.

HL contacted Attorney Robert Lewin. Attorney Lewin immediately got the police reports and it became evident that if HL’s wife exercised her “marital privilege” and refused to testify against HL that the Commonwealth would have a difficult time proving their case. The Essex County DA’s Office is very hesitant to dismiss domestic Assault & Battery cases at the pre-trial hearing, even if the “victim” exercises her marital privilege. It is the “standard practice” of the Essex County DA’s Office to push the case to trial to see if the “victim” will ultimately chose to testify against their spouse. Attorney Lewin spoke with HL’s wife and she made it crystal clear that she wanted the case dismissed and that she would exercise her marital privilege and not testify against her husband.

Attorney Lewin prepared a marital affidavit for HL’s wife to sign wherein she stated that she would exercise her marital privilege and that she wanted the case dismissed. Attorney Lewin furnished the signed affidavit to the District Attorney and advocated for the DA’s Office to dismiss the case at the pre-trial as opposed to making everyone come back to court for a trial date.

GD, a man in his late thirties, was sitting one afternoon in his car in Beverly with his Mother. A group of people with young children walked by. As they walked by they said hello to GD. He responded, allegedly, by threatening to run them over with the car. It was then alleged that GD drove the car fast and erratically toward the group. GD was charged with two counts of Assault with a Dangerous Weapon (the car); Reckless Operation; and Disorderly Conduct. It appeared that GD suffers from paranoia and a personality disorder. GD was claiming that the car he was in was infested with spiders and that he was bitten.

GD went to Salem District Court and was arraigned on the charges. He – with the help of his family – then retained Attorney Robert Lewin. Attorney Lewin then thoroughly reviewed all the witness statements and the police reports.Something did not seem right with the reports. Attorney Lewin filed a DiBenedetto Motion to Dismiss all the charges. A DiBenedetto Motion is a request to dismiss a criminal charge when the evidence presented to the Clerk-Magistrate does not create probable cause.

On July 16, 2013 (30 days after his arraignment) GD and Attorney Lewin appeared in Salem District Court. The case was called and Attorney Lewin told the Judge the Defense was prepared to go ahead with the Motion to Dismiss. The Assistant DA asked for a second call which the Judge granted. After reading Attorney Lewin’s Motion and the police reports the Assistant DA agreed to a dismissal of all the charges. GD and his family left the Court very happy.