Articles Posted in Clerk-Magistrate Hearings

On July 19, 2018, KL, a 28 year old male data analyst went out with his girlfriend to a restaurant/bar in Newburyport. They ate and had several drinks and then at about 10:30 PM they left the bar and got into KL’s car which was parked in the parking lot. As KL backed up, the rear end of his car came into contact with the rear bumper of another vehicle that was parked in the parking lot. According to the police report there was “minor damage” to the passenger side rear bumper of the parked vehicle. KL got out of his vehicle and walked over to the parked vehicle. There were several witnesses in the parking lot to the entire event. KL then got back into his vehicle and drove away. The police were called and responded. The witnesses told the police what had happened and furnished the registration plate number of KL’s vehicle to the police. From the plate number the police were able to ascertain the owner of the offending vehicle (KL). The police then went into the restaurant/bar and showed the bartender a photo of KL (which the police had obtained on their portable data terminal from the Registry of Motor Vehicles). The bartender immediately identified the picture of KL as a customer who had been in the bar with a woman. The bartender was able to get the credit card charge slip that KL had signed and it bore KL’s name.

The police attempted to speak with KL but were not successful. The police issued a citation for Leaving the Scene of a Property Damage collision. KL consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin instructed KL to immediately request a hearing before a Clerk-Magistrate at the Newburyport District Court which KL did. Attorney Lewin was able to obtain a copy of the Police Narrative Report. Attorney Lewin reached out to the police prosecutor to see if a resolution of the case could be reached at the Clerk-Magistrate hearing. On September 7, 2018 KL and Attorney Lewin appeared at the Newburyport District Court for the Clerk-Magistrate hearing. The owner of the struck vehicle was not present. The purpose of a Clerk-Magistrate hearing is for the Clerk to decide whether there is probable cause to issue the complaint. If the Clerk-Magistrate finds no probable cause then no complaint will be issued. If the Clerk-Magistrate finds probable cause then the Clerk-Magistrate may issue the complaint; or the Clerk-Magistrate may, in his or her discretion, continue the hearing for a period of time and at the end of that period of time if there are no reports of any further trouble with the law then the Clerk-Magistrate will dismiss the application for the criminal complaint and not issue the complaint.

At the hearing on September 7, 2018 the notion of an Accord & Satisfaction was discussed. There is a statute in Massachusetts that provides as follows:

On June 5, 2018, AN, a 26 year old nurse from Cambridge, was driving from Methuen to Boston. She came to the Rotary at 110 & 93 in Methuen and was stopped at a red light on Rt. 110. Her foot came off the brake and her car rolled into the back end of the car in front of her. AN and the driver of the other car exited their vehicles. The other driver, a 69 year old man with a short fuse, was incensed that AN had struck his vehicle. AN looked but could not see any damage to the other vehicle. Because they were stopped in a lane of moving traffic the man got back in his car and told AN to pull off the road. The man drove his car to the right side of the road and ultimately into a parking lot.  AN followed but then left the scene without exchanging her information with the other driver. The other driver got her license plate number and reported the accident and the hit and run to the police. The police attempted to reach AN but were not successful. Subsequently AN received a citation for Leaving the Scene of a Property Damage Accident.

AN consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately contacted the police prosecutor from Methuen and obtained a copy of the police report. Attorney Lewin also immediately requested a hearing by a Clerk-Magistrate of the Court. Getting a hearing is important as it can avoid avoid a criminal complaint from being issued and it then avoids a criminal record and it avoids going in front of a judge.

Attorney Lewin sent the police prosecutor a lengthy letter detailing AN’s background, her education, her occupation as a nurse and he detailed the facts of the alleged “hit and run” and that the reason AN left the scene was she was concerned for her personal safety given the other driver’s behavior.

On July 1, 2018 the Haverhill Police were called to  a single family home in Haverhill for a reported domestic assault and battery. Mr. and Mrs. T and their son F, age 21, live in the house. F is a large man standing almost 6’4″ tall and weighing almost 350 pounds. F suffers from severe anxiety. F and his Mother, Mrs. T, got into an argument and as F hovered over her in a very threatening manner, Mrs. T shoved him away. Unbelievably, he picked up the phone and called 911 and claimed he had been struck by his Mother. The police responded and F told them that his mother had slapped him in the face. The police decided to arrest Mrs. T. She and her husband protested. A sergeant from the police station came to the house and ultimately it was decided that F would leave the house and that Mrs. T would not be arrested but rather would be summonsed to court for a Clerk-Magistrate Hearing.

Mrs. T consulted with and retained Attorney Robert Lewin from North Andover. It was obvious to anyone with any common sense that Mrs. T had NOT committed any criminal offense. Attorney Lewin immediately obtained the police reports and then contacted the police prosecutor. Attorney Lewin  gave the police prosecutor the true picture of the case and that it was the son, not the mother, who had been the aggressor here.

On August 15, 2018 Mr. and Mrs. T and Attorney Lewin appeared for a hearing before the Clerk-Magistrate of the Haverhill District Court. Attorney Lewin explained all the circumstances of the case to the Clerk-Magistrate and requested that the Application for a Criminal Complaint for Assault & Battery against Mrs. T be denied. The Police Prosecutor and the Clerk-Magistrate agreed with Attorney Lewin’s request and the Clerk-Magistrate denied the application for criminal complaint against Mrs. T.

On April 6, 2018, AA, a 17 year old High School student was driving his younger sister to school. He got pulled over by the police and was issued a citation for speeding (50 mph in a 25 mph zone).  Because he is a junior operator he was facing a loss of license of 90 days and mandatory attendance at a driver retraining program. AA mailed the citation in and requested a hearing. AA’s parents consulted with and retained Attorney Robert Lewin from North Andover to represent AA at his Court Clerk-Magistrate Hearing. Attorney Lewin had AA get for Attorney Lewin his high school report card (which was excellent) along with any awards that AA had received. The citation was set down for a hearing on August 15, 2018.

Before the hearing date (and after April 6, 2018) AA got stopped again by the same police department and was issued a warning for speeding (40 mph in a 25 mph zone). Attorney Lewin spoke with the Town Police Prosecutor prior to the hearing date to see if the Prosecutor had any objection to the Clerk not finding AA responsible on the ticket.

On August 15, 2018 AA, AA’s father, and Attorney Lewin appeared at Court for the hearing on the ticket. Attorney Lewin explained to the Clerk-Magistrate that AA was driving his sister to school and that he needs his license to help his parents with his three siblings, one of whom is disabled. The Clerk-Magistrate was troubled by the fact that AA had received a warning for speeding after the date of the first citation; nevertheless, the Clerk-Magistrate agreed to follow Attorney Lewin’s recommendation and continued the hearing on the ticket for six months to February 6, 2019. As long as AA does not get any more tickets then on February 6, 2018 the ticket will be dismissed and AA will not lose his license.

CX, a 29 year old male consultant, and his former girlfriend, BH, had an up and down relationship. Unfortunately CX had a very short fuse and a very long temper and was prone to very angry outbursts against BH. Unfortunately for CX, he would communicate his outbursts against BH via text messages. CX and BH had previously lived in NY State and BH had obtained an Abuse Prevention Order against CX in NY. They both then moved to Massachusetts. Neither CX nor BH believed that the NY Order was effective in Massachusetts. That was their first mistake. Massachusetts, as does most states, has a law that makes an out of state abuse prevention order enforceable in Massachusetts as if it were an order from a Massachusetts Court.

After they moved from NY to MA they broke up and CX began seeing some other women. On or about April 23, 2018 CX learned through a text message from BH that BH had spoken with another man. CX went ballistic and went on a text rant. CX texted to BH’s Mother: “If you care about your daughter, have her call me now. Right f___ing now.” CX then texted BH directly “F__you. F___you. F___you. F___you. F___you. F___you. F___you. You F___ing idiot. Why did you write me that text. Did you mean to do that or not. You know the consequence. You know I have learned over time and will not make the same mistake twice.”

BH and her Mother went to the police and showed the text messages to the police. The police filed an Application for a Criminal Complaint against CX for Violation of the NY Abuse Prevention Order in Haverhill District Court. The Application was set up for a Clerk-Magistrate Hearing on May 31, 2018.

DB, a 46 year old repairman, went through a bitter divorce several years ago. His former wife has a history of making false accusations about DB. On Friday, March 23, 2018 DB received a Notice from the Newburyport District Court that the Rowley Police had filed an application for a criminal complaint against DB alleging that DB had violated a 209A Abuse Prevention Order. The Notice told DB that a hearing would be held at the Newburyport District Court on Wednesday, March 28, 2018 to determine whether a criminal complaint would be issued against DB. Late in the afternoon on Monday, March 26, DB found and hired Attorney Robert Lewin from North Andover. On Tuesday, March 27, 2018 Attorney Lewin obtained a copy of the police report and spent the better part of the day and  night preparing the case. The police report alleged that the Abuse Prevention Order required – among other things – that DB not go into the Market Basket store in Rowley. The police report indicated that a witness who knew DB for 25 years saw DB in the store on March 5, 2018 and reported it to the police the next day on March 6, 2018. DB was able to secure his cell phone records which showed that on March 5, 2018 DB’s cell phone pinged on towers in Douglas, MA before and after the time he was allegedly in the Market Basket store in Rowley. It is over 80 miles from Douglas to Rowley. In addition, DB and his current wife had a post office receipt showing that they were in the Post Office in Douglas, MA shortly before he was allegedly in Rowley. In one day and evening Attorney Lewin and DB put together all the documentary evidence. On March 28, 2018 Attorney Lewin met DB and his current wife at the Courthouse 1 hour before the hearing. Attorney Lewin sat with DB and his wife and went over their testimony in detail. Attorney Lewin gave them strict instructions about how to behave in the hearing room and he instructed them on how to be a good convincing witness. It was clear to Attorney Lewin that DB was innocent.

Finally – after waiting 1 1/2 hours DB’s case was called in. The Clerk-Magistrate explained that this was a show-cause hearing and the Clerk-Magistrate did not decide whether or not DB was guilty but merely whether there was “probable cause” to issue the complaint. The police prosecutor read the report. Attorney Lewin had DB and his wife testify and the phone records were put into evidence.

Attorney Lewin then advocated to the Magistrate that DB’s testimony and his current wife’s testimony was very believable particularly given the phone records and the receipt from the Post Office. In addition Attorney Lewin presented to the Judge a google maps printout showing where Douglas, MA is and how far it is from Rowley.

In December of 2016, WX, a 32 year old female nanny, with several client families in Andover, MA, was caught stealing from one of her client families. The family contacted the police. WX had been stealing expensive children’s clothing (with the tags still on them) from the family’s home and then selling the clothing online. The police filed an application for a criminal complaint for felony larceny over $250 against WX and the application was set up for a Clerk-Magistrate Hearing at Lawrence District Court. It was critical for WX to avoid having a criminal record – especially for stealing – as virtually all her client families did criminal record checks on WX before hiring her. No one will hire a thief.

WX contacted and retained Attorney Robert Lewin from North Andover, MA to represent her. Attorney Lewin spoke with the Andover PD police prosecutor to see if an agreement could be reached to avoid a criminal complaint from issuing. The prosecutor told Attorney Lewin that $1,700.00 worth of clothing had been stolen.

Fortunately for WX, the family from whom she stole loved her work as a nanny with the children. WX was patient, kind, instructive, and supportive with the children. The family was sad to have to fire her. Attorney Lewin explained to WX that if a criminal complaint was to be avoided – a long shot in this case – she would have to pay the $1,700.00 in restitution. WX asked if she could pay that over time; Attorney Lewin told WX that if she wanted to maximize her chances of making the case go away she would have to be prepared to pay the restitution in full on the day of the Court hearing.

On April 18, 2017 BI, a 28 year old waitress from North Andover with an addiction to opiates, got pulled over by members of the Essex County Drug Task Force, after she was observed making a hand to hand buy of drugs from a dealer who was under surveillance. In addition to working as a waitress BI is also a full time student at a local college with a financial aid package. The police did not arrest BI, but told her that she would receive a notice from Lawrence District Court. The notice came and informed BI that an application for a criminal complaint for Possession of Heroin had been filed against her by the State Police and that a hearing would be held at the Court before a Clerk-Magistrate on September 7, 2017. The purpose of the Clerk-Magistrate Hearing is for the Clerk to determine if there is probable cause to issue a criminal complaint. In BI’s case there was plenty of probable cause. The police had observed a hand to hand sale and she produced the two bags of heroin when stopped by the police.

BI consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin encouraged BI to get into drug treatment/counseling which she did. Attorney Lewin explained the purpose of the hearing to BI and he told BI that he would ask the Clerk-Magistrate not to issue a criminal complaint against BI, but rather to continue the hearing for an appropriate period of time and if she remained clean and out of trouble to then dismiss the application for the criminal complaint. Attorney Lewin explained to BI that his request was a real reach, but the worst the Clerk-Magistrate could say is no.

On September 7, 2017 BI and Attorney Lewin (and BI’s Mother) appeared at Lawrence District Court for the hearing. The Clerk-Magistrate heard the facts of the case from the police prosecutor. Attorney Lewin then explained that BI was addicted to opiates, but that she was in a program of counseling and she was in a vivitrol smart recovery program. Attorney Lewin informed the Clerk-Magistrate that BI both worked and went to college and was on financial aid. A conviction (or even the issuance of a complaint for possession of heroin) could get BI expelled from school and she could lose her financial aid. Because of the rise in opiate deaths (and because BI had a prior arrest for Distribution of Heroin) the Clerk-Magistrate was reluctant to not issue a complaint. Finally, the Clerk-Magistrate addressed BI and said “I am going to take a chance on you and I hope I am not making a deadly mistake”. The Clerk-Magistrate then continued the hearing until December 29, 2017 and told BI that if she stays out of trouble between now and that date then on December 29, 2017 the application for a criminal complaint will be dismissed and she will not be charged, she will  not have to go in front of a judge, and no criminal record will be created as a result of this case.

On April 7, 2017 CN, a 59 year old engineer, was driving to work when she got pulled over by a Bedford (MA) police officer and was given a civil motor vehicle citation for failure to slow at an intersection. CN has a lengthy motor vehicle record and was at risk of losing her license and of getting hit with additional insurance surcharges. CN retained attorney Robert Lewin from North Andover. Attorney Lewin had CN go to the intersection in question and take a series of pictures. The pictures were helpful in showing that CN had an unobstructed view of the traffic on the intersecting way. Attorney Lewin prepared CN for the hearing and gave her the do’s and dont’s of testifying before the clerk-magistrate. On July 12, 2017 Attorney Lewin and CN appeared in Concord District Court for the hearing before the Clerk-Magistrate. CN testified and Attorney Lewin presented the photos. The Clerk-Magistrate found CN NOT responsible. CN left the courthouse with a smile on her face.

ED, a 37 year old counselor from Manchester, NH had a problem. He would go to the shopping malls to the food court and sit in the food court among many other patrons (and children) and put his hands down his pants and masturbate. ED was observed in the North Shore Mall in Peabody on June 24, 2016. On that day a female patron and her young daughter were in the food court sitting at a table across from ED and observed that his hand was down his pants and he appeared to be masturbating. The woman got up and reported her observations to mall security. ED left the mall on that June date before mall security could confront him. The woman gave a detailed description of ED.

On July 1, 2016 (7 days after the June 24 incident) ED was again at the North Shore Mall in the food court. Based on the description that had been furnished by the witness on June 24, 2016 mall security observed ED in the mall and felt he may be the person that the witness described in the June 24 incident. Mall security began to observe ED. The security guard in his report wrote that ED sat at a table in the food court; that ED then put his left hand down the front of his pants and his hand was moving up and down in the area of ED’s genitals. The security guard continued that at one point ED’s eyes closed and ED’s legs were shaking. The security team then approached ED and confronted him. He said his hand was in his pocket.

ED was very lucky. The police could have arrested him; the police chose not to arrest ED but rather told him he would receive a notice from the Peabody District Court. The Police filed an application for a criminal complaint to be issued against ED for Lewd, Wanton and Lascivious Conduct. The application was set up for a Clerk-Magistrate Hearing on September 27, 2016. The purpose of the hearing is for the Clerk-Magistrate to determine whether there is probable cause to issue a criminal complaint. There was plenty of probable cause in ED’s case.