Clerk-Magistrate Hearings

April 4, 2020

Assault & Battery Charge Avoided in Newburyport District Court

On December 21, 2019 two men (JG and JM) who shared an apartment in Newburyport went out for a few drinks. They returned back to the apartment. It is at this point that the two versions of what happened differ wildly. The police reports contain the following: According to JG, who owned the lease on the apartment, JG asked the roommate JM to leave the apartment. When JM refused to leave an argument broke out and JM punched JG and pushed him to the floor knocking over a Christmas tree. According to JM, when they returned from the bar JM tried to go to sleep but JG began arguing with JM and JG pushed and scratched JM at which point JM pushed JG away. Both men told the police that the other man was the aggressor. Both men told the police that the other man hit first. And both men told the police they acted in self-defense. JG had visible injuries and he had been the one that called the police. JG requested medical attention and was brought to the hospital. The police arrested JM at the scene and the police told JG that he would receive a notice to go to court.

On December 23, 2020 JM was arraigned in Newburyport District Court and his case was continued for a pre-trial hearing to January 27, 2020. JM was appointed a lawyer. JG received a Notice of a Criminal Complaint Application that had been filed by the police. The Notice informed JG that the police had filed an application against JG at the Court wherein the police were asking the Clerk-Magistrate of the Court to issue a criminal complaint against JG for Assault & Battery. The Notice further informed JG that a hearing would be held at the Court by a Clerk-Magistrate on January 31, 2020. JG met with and retained Attorney Robert Lewin of Andover. Attorney Lewin explained to JG that you never want to be in criminal court – especially in Newburyport District Court, the toughest District Court in Essex County. Attorney Lewin explained to JG that the only people who “win” in Criminal Court are the lawyers because the lawyers get paid to be there. Attorney Lewin explained to JG that if JM refused to testify against JG then it was very likely the case against JG would go away and JG would not be charged. Likewise, Attorney Lewin explained that if JG refused to testify against JM the case against JM would likely go away. JG told Attorney Lewin that he did not want to be charged and he had no problem with the case against JM being dismissed.

Attorney Lewin called the lawyer that had been appointed to represent JM and proposed that both men refuse to testify against the other in their respective cases. The public defender agreed with Attorney Lewin’s suggestion. Attorney Lewin called the police prosecutor. The police prosecutor represents the police department at the Clerk-Magistrate Hearing. The prosecutor said that if JM had no interest in going forward with the case against JG then the police would not press the matter forward at the Clerk-Magistrate Hearing. Attorney Lewin told the public defender for JM to speak with the Assistant DA and to tell the DA that Attorney Lewin represented JG and that JG was not going to testify against JM.

January 19, 2020

BREAKING AND ENTERING AND LARCENY CHARGES DIVERTED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

On November 15, 2019 KA, a 21 year old Senior at Salem State, put his college enrollment and graduation at risk by breaking into a campus building and stealing a case of beverages from the school cafeteria. At 2:30 in the morning he and another student entered the building and were in the process of stealing the bottles of beverages when the campus police came upon the two students. KA and the other student ran. KA got away; the other student did not. The other student identified KA for the campus police as the other intruder.

The police applied for a criminal complaint against KA for breaking and entering and larceny; the application was set up for a hearing before a Clerk-Magistrate at Salem District Court. The hearing was scheduled for Friday, January 17, 2020. Three days before the hearing, KA and his mother consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately took control of the case. Attorney Lewin obtained and reviewed the police reports with KA. Attorney Lewin then reached out to the officer in charge of the case and the police prosecutor and advocated for the case to be diverted out of the criminal justice system. The Essex County DA’s Office runs a diversion program the principal benefit of which is to completely avoid criminal prosecution. Attorney Lewin then went over to Salem District Court and met with the head of the diversion program and advocated for the program to accept KA. The program director agreed that KA was a suitable candidate for the program.

On January 27, 2020 KA, his Mother, and Attorney Lewin appeared at Salem District Curt for the hearing before the Clerk-Magistrate. At the commencement of the hearing Attorney Lewin pointed out to the Clerk-Magistrate that Attorney Lewin had already spoken to the program director and that the program director felt that KA was a suitable candidate for the program. The police prosecutor told the Clerk-Magistrate that the police did not object to KA’s case being diverted. The Clerk-Magistrate agreed and said that she was referring the case to the Diversion Program.

January 12, 2020

Assault & Battery Charge Denied

by Robert D. Lewin

KP, a 65 year old man from California, was on a work assignment in Andover, MA. He got into a dispute with a fellow employee. According to KP the fellow employee attacked KP and the fellow employee ended up getting charged by the Andover police with Assault & Battery on a Person Over 60. The fellow employee turned around and filed an application for a criminal complaint against KP at Lawrence District Court alleging that KP had punched and strangled him and had hurled racial insults against the fellow employee. The Clerk-Magistrate’s Office at Lawrence District Court scheduled the application for a criminal complaint against KP for a hearing on January 9, 2020. KP was referred to Attorney Robert Lewin from North Andover. KP and Attorney Lewin had an initial conference over the phone that lasted about 1 1/2 hours. KP then retained Attorney Lewin. Attorney Lewin explained to KP that it would be prudent for Attorney Lewin to find out who was representing the fellow employee in the fellow employee’s criminal case. Attorney Lewin explained that both KP and the fellow employee have a Fifth Amendment right not to testify against one another and that if they both exercised their Fifth Amendment right it was very likely the Commonwealth could not proceed against of the the two men. KP had no interest in pursuing the criminal charge that the police had filed against the fellow employee and KP certainly did not want to have to defend against a charge of Assault & Battery himself. Attorney Lewin explained to KP that the only people who win when a case goes to court are the lawyers because the lawyers get paid.

Attorney Lewin reached out to the lawyer for the fellow employee and explained that KP would not come out from California to Massachusetts to testify against the fellow employee if the fellow employee agreed not to testify against KP at the Clerk-Magistrate hearing. The attorney for the fellow employee agreed.

On January 9, 2020 Attorney Lewin appeared at the office of the Clerk-Magistrate for the hearing on the application for the criminal complaint for Assault & Battery against KP. KP remained in California. No one else showed up. The fellow employee and his Attorney had agreed with Attorney Lewin that they would not appear. The Clerk-Magistrate called the case and when no one other than Attorney Lewin responded the Clerk-Magistrate denied the Application for a Criminal Complaint against KP. As a result KP was not charged with any criminal offense; KP did not have to come to Massachusetts; and NO criminal record was created against KP. Attorney Lewin left the hearing room at Lawrence District Court and called KP in California and told him that he had just won his case! KP was thrilled and gave Attorney Lewin a big “thank you” from California.

January 5, 2020

Another Hit and Run Case Won

by Robert D. Lewin

DE, a 35 year old woman from Lowell, was cited by the State Police for a Hit and Run on Route 495 in Andover. On November 6, 2019, after leaving a bar/restaurant in Andover, she headed onto Rt. 495 South from Route 28 in Andover. At the same time a tractor trailer unit was headed south on Rt. 495. The driver of the truck observed her. The State Police report states: “[The truck driver] stated that she lost control and turned sideways. He then stated she appeared to regain control and continued onto the highway crashing into the side of his vehicle as he was traveling in the first travel lane. [The truck driver] advised that he could see that the passengers mirror was hanging from the drivers side as the vehicle fled the scene.” DE was subsequently identified as the operator of her vehicle at the time of the hit and run and on November 11, 2019 DE was issued a citation by the State Police for Leaving the Scene of a Property damage accident.

DE knew Attorney Robert Lewin from North Andover as he had successfully defended her in 2013 against a charge of operating after suspension of her license. DE immediately contacted Attorney Lewin and retained him.

Attorney Lewin went over to Lawrence District Court and immediately filed a request for a Clerk-Magistrate Hearing. Attorney Lewin checked the papers in the Clerk-Magistrate’s Office to see if the State Police had filed their copy of the Citation along with an Application for Criminal Complaint for the Hit and Run against DE. Under a little known statute (although well known to Attorney Lewin) the police have six business days to file their copy of the citation along with their application for a criminal complaint in the Clerk-Magistrate’s Office of the Court. Failure to do so is a defense. Attorney Lewin discovered that the police had not filed their paperwork. Attorney Lewin kept checking with the Clerk-Magistrate and it was not until November 25, 2019 that the police finally filed their copy of the citation along with their Application for Criminal Complaint against DE. This was 9 business days (exclude Saturdays, Sundays, and Thanksgiving Day). DE’s case was set up for a Clerk-Magistrate Hearing.

November 7, 2019

Felony Charge of Assault & Battery on a Person Over 60 avoided at Clerk-Magistrate Hearing

by Robert D. Lewin

NT, a 28 year old woman with anger issues, got into an argument with her next door neighbor – a retired cop. The argument arose when the neighbor’s dogs came onto NT’s property. The neighbor came over to get the dogs and NT got in his face and began to yell at him. As the neighbor turned to leave NT yelled at him “You come back here”. According to the police report the neighbor stated “he turned back around and that was when NT spit up a loogie and spit it at the neighbor striking his chest”. (You can’t make this stuff up!)

The neighbor called the police and the police responded. The police talked to the neighbor and to NT’s father. The father told the police that NT had anger issues. The police then applied for a criminal complaint against NT for Assault and Battery on a Person Over 60 – a felony. NT has a good job and having a record for a felony charge could have very serious consequences for her employment. NT received a notice from Woburn District Court informing her that a Hearing before a Clerk-Magistrate had been set for November 6, 2019.

NT met with and retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately obtained copies of the police reports. Attorney Lewin then called the Police Prosecutor and sent an email to the police prosecutor detailing how detrimental it would be for NT to be charged with a felony. Attorney Lewin suggested to the Police Prosecutor that this would be a good case to resolve at the Clerk-Magistrate Hearing without a complaint being issued against NT. The prosecutor agreed with Attorney Lewin.

November 4, 2019

Possession of Cocaine Case DIVERTED OUT in Lawrence District Court. NO Criminal Record Created

by Robert D. Lewin

On January 18, 2019 at about 6:30 pm JN, a 32 year old HVAC Technician from Londonderry, NH came down to Lawrence with a friend to buy cocaine. Little did they know that they were being watched by the North Shore Gang Unit doing surveillance in Lawrence. After watching JN and his friend make a hand to hand purchase of drugs, the police pulled JN’s vehicle over. The two men were ordered out of JN’s vehicle and a pat down of JN yielded plastic twists of cocaine in JN’s pocket.

JN and his friend got lucky. The police did not arrest them, but rather told them that they would receive a notice to go to court. Six months later (!) in July 2019 JN received a Notice of Magistrate’s Hearing. The police had filed an application for a criminal complaint for Possession of Class B against JN. The case had a hearing date of August 1, 2019.

JN met with and then hired Attorney Robert Lewin from North Andover. JN and Attorney Lewin thoroughly discussed the case. There were many issues not the least of which was the legality of the stop of JN’s vehicle and the search of JN by the police.

November 2, 2019

Felony Assault with Dangerous Weapon dismissed at Clerk-Magistrate Hearing

by Robert D. Lewin

JJ, a 69 year old disabled Methuen resident, hates his next door neighbor. The neighbor parks his truck right at the property line between the two mens’ properties and this drives JJ nuts. On August 9, 2019 the neighbor was standing by his truck. JJ grabbed his cane (!) and hobbled outside of his house, down the walkway, to his fence. According to a Methuen Police Report JJ then started to approach his neighbor and yelled at the neighbor “You’re a fat fu–ing piece of sh–.” The police report then states that JJ continued to approach his neighbor and began swinging his cane and yelled “I want to smash your head in.” The neighbor called 911 and the police responded. The police spoke to JJ who denied swinging the cane. The police did not arrest JJ but filed an application for a criminal complaint for Assault with a Dangerous Weapon against JJ at Lawrence District Court.

JJ called Attorney Robert Lewin from North Andover. As it turns out Attorney Lewin had represented JJ in 2012 for a similar incident with the neighbor where the neighbor had applied for an abuse prevention order against JJ. At a full hearing in front of a Judge in Lawrence District Court that Abuse Prevention Order was denied. Attorney Lewin had also represented JJ in 2018 at a Clerk-Magistrate Hearing where the police had filed an application for a criminal complaint against JJ for threatening to kill the neighbor. Attorney Lewin was successful in getting that case dismissed. Attorney Lewin warned JJ that he had to get his temper under control and ignore the neighbor.

In any event on October 10, 2019 the Clerk-Magistrate Hearing was held at Lawrence District Court and after a full hearing at which the neighbor was present the Clerk-Magistrate denied the application for a criminal complaint against JJ.

October 4, 2019

OUI DRUGS & RECKLESS OPERATION CHARGES DISMISSED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

On August 31, 2019, UN, a 21 year old college student was driving his car in Beverly, MA when he veered off the road and struck a tree head on. The police responded to the scene (along with a group of neighbors). UN was behind the wheel and appeared to be drifting in and out of consciousness. His pupils were extremely dilated. In the car the police found an open container of beer along with what appeared to be a “drug pipe” (as described in the police report). Two doses of Narcan were administered to UN and he responded. He was brought to Beverly Hospital. The police cited UN for OUI Drugs and Reckless Operation. In addition, the Police also served UN with a Notice of Immediate Threat. A notice of Immediate Threat is a notice that the police send to the Registry of Motor Vehicles to request the RMV to suspend a person’s license because the person (for either a medical reason or some other reason) poses a threat to the public if they operate a motor vehicle.

UN insisted that he had not consumed any drugs or any alcohol. UN (and his family) sought out a lawyer. UN and his Mother had an initial free consultation with Attorney Robert Lewin from North Andover. The consult ran over two hours. UN and his family hired Attorney Lewin.

Attorney Lewin told UN that the Hospital Report would be critical to defending this case – and it was. Attorney Lewin directed UN to go to the hospital and obtain a copy of the complete hospital report – including most importantly all the blood test results and all the urine test results. Sure enough, the test results showed NO alcohol and NO controlled substances -in particular NO opiates. The case became a slam dunk at that point.

September 1, 2019

BREAKING AND ENTERING CHARGE DISMISSED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

In 2018 DE graduated from Phillips Academy in Andover. On June 1, 2019 he decided to return to Andover to celebrate his first reunion with classmates and friends. Of course, there was a young lady who was due to graduated on June 2, 2019 and DE and she had been in a romantic relationship. She wanted to see him badly; in fact she wanted him to stay the night with her in her dorm room. She called him and texted him imploring him to come be with her. He did not want to and told her that he was with a number of friends. She persisted and finally he agreed. Her dorm was a locked dormitory. She opened the locked outer building door and left it wedged open so that he would be able to get in. He came to the wedged open door and entered the building and went up to her room. Subsequently another dorm resident reported that there was a male in the building and the dorm director went to the girl’s room. DE was discovered hiding in the closet. The girl, fearing that she would not be allowed to graduate the next day, told the dorm director that he had been calling her insisting that she let him in; that she had told him not to come to the dorm or her room; that he came anyway and that he burst into her room; that she told him to leave and that he refused. The school notified the police and the police charged DE with Breaking and Entering a building in the nighttime with the intent to cause a misdemeanor. The case was set up for a hearing before a Clerk-Magistrate at Lawrence District Court.

DE and his family live in New York and they were told to call Attorney Robert Lewin from North Andover. DE and his father had an initial free consultation with Attorney Lewin on the phone that lasted about 1 1/2 hours. DE’s father immediately retained Attorney Lewin. Attorney Lewin had DE send to Attorney Lewin all the text messages that DE had exchanged with the girl. The text messages were terrific evidence that the girl had lied when she reported that he arrived uninvited. Not only did she explicitly insist that he stay overnight with her she asked him to “bring alcohol” (which he did not do).

On July 18, 2019 DE, his father, and Attorney Lewin appeared in Lawrence District Court for the Clerk-Magistrate Hearing. These Clerk-Magistrate Hearings are important because it is an opportunity to kill a criminal case BEFORE it goes before a judge and BEFORE it goes on your criminal record. At the hearing the police prosecutor read the police report. Attorney Lewin then produced the text messages and read them message by message. When Attorney Lewin was done the Clerk-Magistrate looked at the Police Prosecutor and said “where is the crime?” The young man was invited in and he had no intent to commit a crime when he entered the building. The Clerk-Magistrate denied the police application for a criminal complaint.

June 4, 2019

SEXUAL CONDUCT FOR FEE CASE TO BE DISMISSED

by Robert D. Lewin

XM, is a 46 year old project manager for a large contractor. XM resides in a community north of Boston and in March of 2019 ran an ad on Craig’s List soliciting sex (a hand job) for a fee ($40). The ad was picked up by the local police department and they set up a sting. An officer replied to the ad via email. An exchange of emails between the undercover cop and XM was recorded and a meet was set up. The price and the sexual conduct was agreed to in the emails. XM arrived at the agreed upon location at the agreed upon time. XM then sent an email describing his truck. The police arrived and XM was asked to come to the station which he agreed to do. At the station XM confessed. XM was not arrested but was told to expect paperwork from the Woburn District Court. XM consulted with and retained Attorney Robert Lewin of North Andover. Attorney Lewin explained that it would be important to speak with the police prosecutor right away to see if a Clerk-Magistrate Hearing could be set up, before an actual criminal complaint was issued by the Court. Attorney Lewin spoke with the police prosecutor and explained XM’s situation. XM and his wife had just had a baby and his wife was suffering from post partum depression and it had been several months since they had had sex. He was just seeking a release and was willing to pay for it. Attorney Lewin advocated with the police to reach a resolution of the case at a Clerk-Magistrate hearing so that XM would not be charged. The police agreed to Attorney Lewin’s request.

On June 4, 2019 XM and Attorney Lewin appeared in Woburn District Court for a Clerk-Magistrate Hearing. The police report was read to the Clerk-Magistrate. The Clerk-Magistrate found that there was probable cause to issue the criminal complaint against XM and send the case to court. The Clerk-Magistrate asked Attorney Lewin about XM. Attorney Lewin gave a comprehensive background statement to the Clerk-Magistrate and asked the Clerk-Magistrate not to issue the criminal complaint. The Clerk-Magistrate agreed. The Clerk-Magistrate continued the hearing for six months and ordered that if XM stayed out of trouble with the law then on December 4, 2019 neither XM nor Attorney Lewin would have to return to court and the application for criminal complaint would be DISMISSED.

As a result of this disposition Attorney Lewin pointed out the following to XM