Clerk-Magistrate Hearings

April 3, 2019

2 Hit & Run Cases in 6 days Dismissed

On March 29, 2019 MM, a 54 year old technician from Wilmington, appeared in Lowell District Court with Attorney Robert Lewin from North Andover, for a Clerk-Magistrate’s Hearing on a charge of Leaving the Scene of a Property Damage Accident. After a full hearing the Clerk-Magistrate dismissed the application for criminal complaint and no criminal complaint was issued against MM.

On April 3, 2019 DL, a 38 year old waitress from Gloucester, appeared in Gloucester District Court with Attorney Robert Lewin from North Andover, for a Clerk-Magistrate Hearing on a charge of Leaving the Scene of a Property Damage Accident. After a full hearing the Clerk-Magistrate continued the hearing for six months and ordered that the application for criminal complaint would be dismissed at the end of the six months provided DL stayed out of trouble. The Clerk also ordered that DL would not have to return to court on the six month date.

As a result of these dispositions it should be noted:

February 15, 2019

Assault & Battery Charge Dismissed at Clerk-Magistrate Hearing in Haverhill District Court

by Robert D. Lewin

For many years a feud had simmered between two brothers. The older brother is age 60 and the younger brother is age 38. On Saturday, January 26, 2019 the younger brother was helping another brother (this is a very large family) move out of a three family house owned by the older brother in Haverhill. The older brother had ordered the younger brother not to come onto the property. The younger brother ignored the order and was in the house helping the other brother move. During the moving process the hardwood floors got scratched, a wall got dented, and an exterior door frame got damaged. The older brother confronted the younger brother and the two brothers got face to face in the presence of about 4 witnesses. The younger brother reported to the Haverhill Police that the older brother then punched the younger brother in the face twice before the two men were separated by the witnesses who were present. According to the police reports the younger brother had visible cuts on his face from the punches.

The Haverhill Police filed an application for a criminal complaint for Assault & Battery against EJ, the older brother. EJ has a job working in a public school system and an assault & battery charge could have drastic consequences for his continued employment and his pension. EJ sought out an attorney. EJ contacted and met with Attorney Robert Lewin from North Andover. Attorney Lewin also met with EJ’s wife; she was present when this happened. Attorney Lewin fully prepared EJ and his wife for the Clerk-Magistrate Hearing.

On February 13, 2019 EJ and his wife and Attorney Lewin appeared in Haverhill District Court for the Clerk-Magistrate Hearing. The police prosecutor read the police report to the Clerk-Magistrate. The report clearly stated that EJ punched his brother twice in the face in the presence of four witnesses causing cuts to the face. The legal test for a Clerk-Magistrate is probable cause; if the Clerk-Magistrate determines that there is some credible evidence that the crime occurred then the Clerk-Magistrate may issue the criminal complaint. The Clerk-Magistrate does not determine if the accused is guilty or not guilty, but merely is there some credible evidence that the crime occurred. It is a very low threshold. EJ and his wife testified that EJ had not punched his brother. In addition Attorney Lewin presented photos at the hearing of the damage that the younger brother had caused to the property. Attorney Lewin also presented photos of EJ; the photos showed bruises on EJ where he had been grabbed by his younger brother.

December 19, 2018

Fifth Hit & Run Win in the last Three Months

by Robert D. Lewin

On December 19, 2018 Attorney Robert Lewin from North Andover appeared in Newburyport District Court for a Clerk-Magistrate Hearing on an application for a criminal complaint that had been filed by the Rowley Police against KX, a 23 year old male laborer, who had left the scene of two accidents in the early morning hours of October 14, 2018. For the fifth time in the last three months Attorney Lewin was successful in getting a leaving the scene of property damage case dismissed. (Salem District Court on December 16, 2018, Lowell District Court on November 16, 2018, Newburyport District Court on September 7, 2018, and Lawrence District Court on September 20, 2018. All these other cases are reported elsewhere in this blog site.)

On October 14, 2018 KX was driving his pickup truck from a friend’s house in Amesbury to his apartment in Beverly. It was around 1:00 AM. As KX was travelling southerly on Rt. 1A in Rowley he entered a turn in the road but took the turn too widely. His truck traveled over the curb and smashed two large wooden planters and a mailbox set atop a concrete post. KX then went across the road dropping wooden debris from the back of his pick up all over the road. A car coming the other way ran over the debris and was damaged. KX decided not to stop and continued to his apartment. When he pulled into the parking area at his apartment he struck his landlord’s truck but did not report that either and went directly into his apartment. Unfortunately for KX he dropped his front bumper and license plate at the scene of the original accident. The Rowley Police were called to the scene of the original accident, found the license plate, ran the plate, and then had the Beverly Police go to KX’s apartment where they found KX’s truck and his landlord’s truck. KX spoke with the Beverly Police and admitted to them that he had been in the two accidents and had failed to stay at the scene. The next day the Rowley Police issued a citation to KX for two counts of Leaving the Scene of a Property Damage Accident. Each count carries a jail sentence of between 2 weeks and 2 years.

KX’s parents contacted, met with, and retained Attorney Robert Lewin from North Andover, MA. Attorney Lewin told them that it was imperative that KX take the citation and hand deliver it to the Newburyport District Court to request a Clerk-Magistrate Hearing immediately. KX did that. Attorney Lewin then reached out to the Rowley Police and spoke with them in an attempt to get them to agree to resolve the case at the Clerk-Magistrate hearing without a criminal complaint being issued against KX. Attorney Lewin also reached out to KX’s insurance company to get assurance from the insurance company that the insurance company would pay for the damages caused.

December 16, 2018

Another Hit and Run Case Win

by Robert D. Lewin

On Sunday, October 21, 2018 shortly after midnight, CL, a 31 year old male from Beverly, was driving to his home from his girlfriend’s house in Middleton. Suddenly a deer ran in front of his car and he swerved to avoid it. CL swerved across the roadway going across the opposite lane and ran off the road and struck a stone wall and mailbox on private property. CL exited his car, looked at the car and the wall, and walked away, leaving the car there. The police were called to the scene and traced the plate number to CL. The police put out a BOLO (Be On the Lookout) for CL but were unable to locate him. A trip to his home in Beverly came up empty.

The next day, Monday, October 21, 2018, CL walked into the Middleton Police Station and reported that he was in the accident. The officer thanked him (!) and then handed him a citation for Leaving the Scene of a Property Damage Accident, Negligent Operation, and a Marked Lanes Violation. In addition the police reported to the Registry of Motor vehicles that CL was an immediate threat. The Registry several days later suspended CL’s license as an immediate threat.

CL and his father consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin told CL to immediately go to Salem District Court and file the citations to request a “show cause” hearing before a Clerk-Magistrate. Attorney Lewin contacted CL’s insurance company to expedite payment of the landowner’s claims for damages to the wall and the mailbox. Attorney Lewin reached out and spoke with the police prosecutor from Middleton.

December 2, 2018

SHOPLIFTING CHARGE DISMISSED

by Robert D. Lewin

On September 8, 2018, NB, a 48 year old Lebanese woman from Lawrence, went into the Stop & Shop Supermarket in Methuen and put $157.24 worth of food into her shopping cart. She then proceeded to walk out the door of the store without paying for the food. NB was stopped by a store loss prevention officer and the Methuen Police were called. NB was charged with shoplifting. On November 1, 2018 NB appeared at Lawrence District Court for a Clerk-Magistrate Hearing. Until about one year ago these shoplifting cases in Lawrence District Court were routinely disposed of at a Clerk-Magistrate hearing without a criminal complaint being issued. Over the last year the Clerk-Magistrates have been issuing criminal complaints in shoplifting cases where the amount in question is over $100 or in cases where the evidence suggests that the accused has engaged in shoplifting before. The Clerk-Magistrate issued a complaint against NB and she had to return to Court for an Arraignment on November 29, 2018. NB retained Attorney Robert Lewin from North Andover. On November 29, 2018 NB appeared in Lawrence District Court and after a brief conference between her lawyer and the Assistant District Attorney the shoplifting charge was ordered dismissed. NB left the court very relieved.

It is important to understand that in Lawrence District Court the Clerk-Magistrates now look closely at the evidence in these shoplifting cases and will often issue a criminal complaint.

October 5, 2018

HIT AND RUN CHARGE AVOIDED

by Robert D. Lewin

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:

September 24, 2018

HIT AND RUN – LAWRENCE DISTRICT COURT – NO PROBABLE CAUSE

by Robert D. Lewin

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.

August 16, 2018

DOMESTIC ASSAULT AND BATTERY DISMISSED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

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.

August 15, 2018

Speeding Ticket Win

by Robert D. Lewin

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.

June 1, 2018

Violation of an Abuse Prevention Order – Dismissed

by Robert D. Lewin

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.