Clerk-Magistrate Hearings

March 29, 2018

VIOLATION OF AN ABUSE PREVENTION ORDER CHARGE THROWN OUT

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.

November 2, 2017

32 YEAR OLD ANDOVER, MA NANNY AVOIDS STEALING CHARGE

by Robert D. Lewin

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.

September 14, 2017

Possession of Heroin Charge Avoided

by Robert D. Lewin

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.

September 14, 2017

Traffic Ticket Win

by Robert D. Lewin

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.

September 13, 2017

Lewd, Wanton and Lascivious Person Charge Avoided

by Robert D. Lewin

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.

June 21, 2017

Felony Charges Avoided

by Robert D. Lewin

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.

March 29, 2017

FELONY LARCENY CHARGE AVOIDED

by Robert D. Lewin

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;

March 21, 2017

JUVENILE MINOR IN POSSESSION OF ALCOHOL CHARGE AVOIDED

by Robert D. Lewin

On February 10, 2017, BH, a sixteen year old student at a prestigious private school, decided to have a party. BH invited a number of school age friends – and of course they brought along a few other friends one of whom brought alcohol to the party. They all drank for several hours. One of the young girls at the party apparently consumed some drugs. BH became very drunk and ultimately went out the back door of his house and collapsed in the snow. The girl left the party and went to a local store and collapsed in the store. She had to be brought to a local hospital. The police were summonsed to the house by neighbors. The rest of the party-goers scattered. The police found BH collapsed in the snow and brought him to the hospital. After investigation the police determined that the girl who collapsed in the store had been at the party and had consumed alcohol and drugs at the party. BH had hosted the party. Subsequently BH received a Notice of Complaint Application from the Essex County Juvenile Court. The police had applied for a juvenile complaint for minor in possession of alcohol against BH. BH was fortunate that the police did not charge him with furnishing alcohol to a minor (the girl). BH’s parents came to Massachusetts (they live out of state). BH and his parents met with and retained Attorney Robert Lewin from North Andover.

Attorney Lewin took a detailed statement of the facts of the case from BH. It became clear the the girl had brought the drugs to the party herself and had consumed the drugs without any help or encouragement from BH. Attorney Lewin met with the police prosecutor from the town involved and advocated for the charge against BH to be “diverted” out of the juvenile justice system. The Essex County District Attorney’s Office – to their credit – has created the Essex County Juvenile Diversion Program. The program is designed to prevent first time offenders from getting a criminal/juvenile record by diverting the case out of the criminal/juvenile justice system.

On February 28, 2017 BH, BH’s parents, and Attorney Lewin appeared in the Essex County Juvenile Court, Lawrence Division, for a hearing on whether or not a juvenile delinquency complaint would be issued against BH. BH is an honor student with a brilliant future and the last thing he needed was a criminal/juvenile record. Attorney Lewin had thoroughly prepared an argument to advocate for the diversion of the case. In addition, before the hearing date Attorney Lewin had met face to face with the director of the juvenile diversion program to discuss the case with her and to seek her approval of BH’s referral to the program. At the hearing before the Clerk-Magistrate of the Juvenile Court Attorney Lewin advocated firmly for diversion of the case. The police were on board and the people from the diversion program were on board. The Clerk-Magistrate adopted Attorney Lewin’s proposal and BH’s case was referred to the juvenile diversion program.

March 16, 2017

Domestic Assault Charge Avoided

by Robert D. Lewin

ED, a 61 year old financier, lives on the first floor of a two family house in North Andover. His brother and father live on the second floor. ED and his brother have been on bad terms with one another for years. On February 19, 2017 ED went upstairs to the second floor apartment to check on his father. ED and his brother got into an argument. The brother called the North Andover Police and told the police that ED had pushed the brother to the floor. The police came to the house and spoke first to the brother. The brother repeated that he had been pushed to the floor by ED. The police then went and spoke to ED. ED told the police that there had been an argument and that the two brothers had pushed one another. The North Andover Police filed applications for criminal complaints for assault against both brothers. The applications were set down for a hearing on March 16, 2017.

ED consulted and retained Attorney Robert Lewin from North Andover. ED had no criminal record and worked in banking and was at risk of losing certain banking and finance licenses. Attorney Lewin learned that ED and his brother do not talk to one another. Attorney Lewin reached out to the brother and spoke with the brother. Attorney Lewin impressed upon the brother that criminal court is a place where no one wants to be if it can be avoided. The brother agreed with Attorney Lewin’s assessment of the situation.

On March 16, 2017 ED and Attorney Lewin and ED’s brother appeared in Lawrence District Court for the Clerk-Magistrate Hearing. Attorney Lewin indicated to the Clerk-Magistrate that neither brother wished to go ahead. The Clerk-Magistrate dismissed both applications for criminal complaint that had been filed by the North Andover Police.

February 17, 2017

Theft by Nanny Charge Avoided

by Robert D. Lewin

WX, a 32 year old professional nanny, was hired by a well to do family in Essex County to work as a nanny for their four children. WX worked for the family for 18 months and a strong relationship developed between WX and the entire family. WX was terrific with the children, one of whom was physically disabled. WX and the Mother of the children developed a frienship. The mother bought very high end children’s clothing and accumulated a great deal of new expesnive children’s clothes. WX is a single parent of two of her own children and financially was having difficulties. WX began to steal some of the clothing from the family and over a period of about two months stole in excess of $1,700.00 of the clothing. WX began to sell the clothes online. The mother discovered the online sales of the clothes that she had bought. WX had taken photos (to display the clothes online). Unfortunately for WX she had taken the photos of the clothes in the home where she worked and the mother immediately recognized her home in the pictures. The mother reported this to the police. The police called in WX who confessed. WX received a Notice of Complaint Hearing from Lawrence District Court for Larceny Over $250. WX spoke with several lawyers and retained Attorney Robert Lewin from North Andover.

Attorney Lewin explained to WX that if there is anything that helps make these cases go away it is being able to pay the restitution ($1,700.00 in this case) without delay. Attorney Lewin immediately reached out to the police prosecutor and to the investigating detective and advocated for a disposition of the case at the Clerk-Magistrate Hearing that would not involve the issuance of a criminal complaint. WX was very lucky: (1) Larceny Over $250 is a felony and is an arrestable offense and she could have been arrested the day she walked into the police station. The police did not arrest her; (2) Larceny Over $250 – being a felony – is a crime for which there is no right to a hearing before a Clerk-Magistrate to decide if a criminal complaint will be issued. Normally when a person is accused of Larceny Over $250 the police either arrest or have the Court issue a summons. In WX’s case the police did not arrest nor did they request a summons. (A summons means that a criminal complaint issues without a hearing and a criminal record is created when the person appears in Court for an arraignment on the summons.) The police requested that a hearing take place to decide whether or not a criminal complaint would be issued against WX. Attorney Lewin recognized that this was unusual and felt that perhaps the police and/or the victim family would be willing to resolve the case without a criminal complaint being issued against WX. Attorney Lewin advocated hard with the police to agree to settle the case at the hearing without a criminal complaint actually issuing against WX.

On February 16, 2017 Attorney Robert Lewin and WX appeared at Lawrence District Court for the hearing. Also present were the Husband and Wife from whom WX had stolen the clothes and the Police Prosecutor. The hearing proceeded. The purpose of a Clerk-Magistrate Hearing is simply for the Clerk-Magistrate to determine if there is probable cause to issue a criminal complaint so that the case can proceed in regular criminal court. In an appropriate case – even when there is probable cause – the Clerk-Magistrates have the discretion to not issue a criminal complaint. Attorney Lewin explained to the Clerk-Magistrate and to the Husband and Wife from whom the clothes had been stolen that WX was prepared to pay the $1,700 in restitution immediately. The police (and to everyone’s surprise) the Husband and Wife were agreeable to a criminal complaint not being issued against WX. The issuance of a criminal complaint would have ruined her career as a nanny. No one wants to hire a thief; and having a charge of Larceny Over $250 on your record brands you as a thief. The Clerk-Magistrate hearing the case was at first extremely reluctant to not issue a complaint. He spoke of the breach of trust and the amount of money involved and the taking of pictures of the clothing in the victim’s home. The Clerk-Magistrate gave WX a long lecture, but in the end he went along with Attorney Lewin’s request to not issue the criminal complaint. The Clerk-Magistrate continued the hearing for six months. He ordered WX to pay the $1,700.00 immediately – which she did. He ordered her to perform 20 hours of community service and to not violate the criminal law.