Clerk-Magistrate Hearings

May 9, 2016

Doctor Avoids Criminal Complaint

On May 24,2015, OM, a Dentist practicing in Boston, was cited on the Massachusetts Turnpike for several civil motor vehicle infractions. She was found responsible and neglected to pay the civil assessments. On June 29, 2015 her license was suspended for failing to pay the assessments. On April 1, 2016 she was traveling again on the Mass. Pike; a trooper was electronically scanning plates (a lawful practice) and her plate came up as owner suspended. The trooper pulled OM over and cited her for driving after suspension of license. He could have arrested her but he did not. She was very concerned about getting a criminal record as she is on the staff of two major teaching hospitals in Boston. OM contacted Attorney Robert Lewin. Attorney Lewin advised her to immediately request a hearing and to immediately get her license reinstated. OM paid the outstanding money owing on the ticket from 2015 and she went to the Registry of Motor Vehicles and paid a reinstatement fee and got her license reinstated. Attorney Lewin obtained OM’s driver record from the RMV to show that she was fully reinstated. On May 9, 2016 OM and Attorney Lewin appeared in Newton District Court for the Clerk-Magistrate’s Hearing on the application for criminal complaint that had been filed by the police against OM. Attorney Lewin presented the evidence from the RMV to show that OM had indeed paid the assessments owing on the old ticket and that the RMV had reinstated OM’s license. Attorney Lewin asked the Clerk-Magistrate not to issue the criminal complaint against OM and pointed out that having a criminal record would be very unhelpful to OM – especially in the medical profession. The Assistant Clerk-Magistrate agreed and denied the police application for the criminal complaint.

As a result of this OM has NO criminal record. Because NO criminal complaint was issued against her she was not charged, she was not arrested, and, most importantly, NO entry was made in the Criminal Offender Record Information System (CORI) against OM. It is as if it did not happen.

December 14, 2015

CHARGE OF 3 YEARS OF ANNOYING SEXUAL PHONE CALLS AVOIDED

by Robert D. Lewin

BH, a 52 year old male from South Carolina, had been calling a student help line at a Major University in the Boston area for over three years. The calls were persistent and had strong sexual overtones. The calls would come in the hours just after midnight and would involve masturbation and other sexual topics. The university had traced the calls back to BH and had warned him to stop. For a while BH contained himself but then the calls started up again. The University filed an application for a criminal complaint against BH. The Application sought a criminal complaint for annoying phone calls. The calls were numerous and the penalty for each call was up to three months in jail. The University had documented close to one hundred calls. BH was looking at the real possibility of a jail sentence. Immediately upon receiving the notice from the Court BH contacted and retained Attorney Robert Lewin from North Andover.

Attorney Lewin implemented a plan of action. Attorney Lewin told BH he had to immediately enroll in counseling with a licensed psychotherapist with experience in sex offenses. Attorney Lewin told BH it would be imperative for the psychotherapist to furnish a report that BH was in treatment to deal with this specific problem. BH did what Attorney Lewin asked. In the meantime Attorney Lewin contacted the University Detective who had completed the investigation. Attorney Lewin advocated for a result that would avoid an actual criminal complaint from being issued against BH. Attorney Lewin had several conversations with the Detective in the weeks leading up to the Court Clerk-Magistrate Hearing. Attorney Lewin received a written report from the psychotherapist. The report certified that BH was in treatment for the specific problems underlying the annoying phone calls.

October 2, 2015

COLLEGE STUDENT AVOIDS CRIMINAL RECORD

by Robert D. Lewin

On September 16, 2015 DP, an 18 year old college Freshman from Andover, allowed a 16 year old friend to drive his car. DP was in the car at the time. DP thought that the friend had a learner’s permit and DP thought that because he was 18 and licensed that he could allow the friend to drive the car. DP was wrong on both counts. His friend did not have a learner’s permit and the age is 21, not 18. The friend cut another car off and unbeknownst to either DP or the friend a police car was directly behind them. The blues went on and the friend pulled over. The police cited the friend from Negligent Operation and Operating without a License. The police cited DP for allowing an improper person to operate. There is a criminal statute in Massachusetts that makes it a crime for the owner or person in control of a motor vehicle to allow an “improper person” to operate their vehicle. The term “improper person” includes someone who has no permit or license. DP had no criminal record and is a college freshman and wants to keep his record clean. DP and his parents hired Attorney Robert Lewin from North Andover to handle the case.

Attorney Lewin knows the Andover Police Prosecutor well. Attorney Lewin spoke immediately with the police prosecutor and explained the situation to the police prosecutor. The police prosecutor agreed with Attorney Lewin’s request to not have a criminal complaint be issued against DP. On October 1, 2015 Attorney Lewin and DP and his parents appeared at Lawrence District Court for a hearing before a Clerk-Magistrate. At the hearing Attorney Lewin explained that DP thought his friend had a learner’s permit and he thought that being 18 he could allow his friend to drive.

September 25, 2015

SUSPENSED LICENSE CHARGE DISMISSED

by Robert D. Lewin

On August 24, 2015 JO, a 52 year old woman from Lawrence was driving her car and headed the wrong way down a one way street. There was an officer there who immediately pulled her over. Unfortunately for JO her license was suspended and had been suspended since 1993 when she was involved in a car accident and failed to pay a property damage judgment that had been entered against her. In Massachusetts if you are involved in an accident where you cause damage to another vehicle (or other property) and you fail to pay for the damage the Registry suspends your license until you pay the property damage judgment or work out a payment schedule. JO had never been able to pay or work out a payment schedule. JO was cited by the officer and was sent a notice to come to court for a Clerk-Magistrate hearing for a one-way street violation and for operating after suspension of license. JO retained Attorney Robert Lewin.
Attorney Lewin told JO the best approach in these cases is to get your license reinstated before the Court hearing. It turned out that the Attorney for the party that had the property damage judgment against JO had died. Attorney Lewin sent JO to the RMV and because there was no record as to whom the money was owing and there was no one to pay the RMV lifted the suspension and reinstated JO’s driving privileges. Because it had been 22 years, JO was issued a learner’s permit and must take the driving test again. Attorney Lewin spoke with the Police Prosecutor and told the Police Prosecutor the background of the case and that JO had been reinstated by the RMV. The police prosecutor agreed that he would not press for a criminal complaint to be issued against JO at the Clerk-Magistrate Hearing.
On September 24, 2015, JO and Attorney Lewin appeared at Lawrence District Court for a Clerk-Magistrate Hearing. Attorney Lewin showed the Clerk-Magistrate and the Police Prosecutor JO’s new learners permit. Attorney Lewin asked that a criminal complaint not be issued against JO. The Clerk-Magistrate then dismissed the application for the criminal complaint and she also entered a not responsible finding on the one-way street violation. JO won her entire case. JO walked out of the courthouse very happy.

September 16, 2015

INDECENT EXPOSURE CHARGE AVOIDED

by Robert D. Lewin

On Thursday morning, July 2, 2015, PQ, a 64 year old man from Cambridge was out working in his garden completely naked. His next door neighbor a sixty-eight year old female was not amused. The police were called and responded. This was not the first time that PQ had done this – in fact it was the third time that had been reported. By the time the police had arrived PQ was in his house and had his clothes on. The female neighbor – who suffers from PTSD – told the police she was “shocked and alarmed” by his repetitive behavior. The police could have charged PQ with Open and Gross Lewdness and arrested him on the spot. Open and Gross Lewdness is a felony and upon two convictions sex offender registration is required. PQ got his first break that morning. The police did not arrest him; instead the police told him he would be receiving a notice from the Court. About one month later PQ received a Notice from the Cambridge District Court that the Cambridge Police had filed an application for a criminal complaint to issue against PQ for Indecent Exposure. The Notice informed PQ that a hearing would be held by a Clerk-Magistrate at the Court to determine whether or not PQ would be formally charged.That was PQ’s second break; the police were seeking a criminal complaint for Indecent Exposure, a misdemeanor that does not require sex offender registration as opposed to the felony charge of Open and Gross Lewdness. (Open and Gross Lewdness is an enhanced form of indecent exposure; it is Indecent Exposure that causes “shock and alarm”.) PQ retained Attorney Robert Lewin from North Andover. Attorney Lewin told PQ he had to enroll immediately with a therapist/counselor/psychologist with expertise in exhibitionism. PQ followed Attorney Lewin’s suggestion and immediately began a program of psychological counseling. Attorney Lewin contacted the Cambridge Police Prosecutor who in turn put Attorney Lewin in contact with the Officer who would be prosecuting the case at the Clerk-Magistrate Hearing. Attorney Lewin spoke at length with the prosecuting police officer and explained that PQ was now in psychological counseling. Attorney Lewin suggested to the prosecutor that the case be resolved at the level of the Clerk-Magistrate Hearing; specifically, Attorney Lewin advocated that a criminal complaint not be issued.
On September 15, 2015 PQ and Attorney Lewin appeared in Cambridge District Court for the Clerk-Magistrate Hearing. PQ’s neighbor was there; the property manager for the complex where PQ and his neighbor live was present; and the prosecutor from Cambridge PD was present. The neighbor told her story to the Clerk-Magistrate; the property manager testified as to the prior complaints from other neighbors in the complex and as to how PQ had been spoken to by the property manager on prior occasions. Attorney Lewin informed the Clerk-Magistrate as to PQ’s good background and as to how he had immediately enrolled in counseling with a psychologist with expertise in dealing with sex offenders. Attorney Lewin presented a report from the psychologist. Attorney Lewin advocated for the Clerk-Magistrate not to issue the criminal complaint but rather to hold the application for one year and if PQ were in no further trouble then the application could be dismissed. The neighbor objected and wanted either a complaint to issue or the matter to be left open for two years. Ultimately the Clerk-Magistrate adopted Attorney Lewin’s proposal and continued the hearing for one year. The Clerk-Magistrate gave PQ a stern warning that if he exposes himself again that he will be arrested and charged with both this case and the new case.
This was a significant win for PQ. He was not charged with any criminal offense; no entry will be made on his criminal record; when the one year goes by – assuming he has been able to keep his clothes on – this application for a criminal complaint will be denied and dismissed and the papers are destroyed. PQ left the courthouse quite relieved.

July 22, 2015

TWO SHOPLIFTING CHARGES AVOIDED

by Robert D. Lewin

On March 12, 2015 FD stole from a store in Lynnfield. The reader is directed to the posting below dated April 29, 2015. Attorney Lewin represented FD at her Clerk-Magistrate’s Hearing in Peabody District Court in that case and got the Clerk-Magistrate to continue the hearing for six months with no complaint to issue as long as FD stayed out of trouble. Unfortunately for FD on June 26, 2015 she went into the Shoe Market in Lynnfield and got caught stealing a $126.00 pair of shoes. FD received notices from the Peabody District Court that on July 22, 2015 a hearing would be held in Peabody District Court (1) to decide if a criminal complaint for the new shoplifting case would be issued against her and (2) to decide what action would be taken on the old, still open, case. FD once again retained Attorney Robert Lewin from North Andover. FD was at risk of having two criminal complaints for either shoplifting or larceny being issued against her. Attorney Lewin and FD and FD’s husband put together a strategy and plan of action to try to maximize the chances of not having criminal complaints be issued. FD enrolled in a Shoplifting Prevention Program; FD – who clearly is having psychological problems – enrolled in a treatment program with a licensed psychologist; FD’s husband went to the Shoe Market and apologized to the owner of the store and paid the store owner the $126.00 for the pair of shoes FD had stolen.

On July 22, 2015 FD, her husband, and Attorney Robert Lewin appeared in Peabody District Court for the hearing. Attorney Lewin presented the Clerk-Magistrate with a report from the psychologist and with proof that FD was enrolled in the Shoplifting Prevention Program. Attorney Lewin made an impassioned argument to the Clerk-Magistrate not to issue criminal complaints against FD. The Clerk-Magistrate agreed and continued the hearing for one year. If FD can stay out of trouble then on July 22, 2016 both applications for criminal complaint against FD will be dismissed and she does not have to return o court.

As a result of this disposition it is important to note the following:

April 29, 2015

ANOTHER SHOPLIFTING CASE AVOIDED

by Robert D. Lewin

On March 12, 2015 FD, a 54 year old woman from Middleton went shopping at Whole Foods in Lynnfield. Instead of using a shopping cart FD used her pockets and pocket book. She filled up her pockets with packages of food and headed out the door. Unfortunately for FD she was being watched by a loss prevention officer (LPO). The LPO stopped FD just after she went out the door of the store. She was brought back to the security office and the Lynnfield Police were called in. The merchandise ($124.00 worth of food) was fully recovered. The store gave FD a No Trespass Order and the police told her she would be summonsed to court. FD retained Attorney Robert Lewin.

Attorney Lewin reached out to the Lynnfield Police and quickly negotiated a resolution of the case that would NOT involve FD being charged with any criminal offense. The case was set up for a Clerk-Magistrate Hearing at Peabody District Court. On April 29, 2015 FD and Attorney Lewin appeared at Peabody District Court for the hearing before the Clerk-Magistrate. The Clerk-Magistrate adopted Attorney Lewin’s request that a complaint NOT be issued against FD; the Clerk-Magistrate continued the hearing for four months and ordered that as long as FD stayed out of trouble then on the four month date she would not have to come to the court and the application for criminal complaint against her would be dismissed.

As a result of this disposition it is important to note the following:

March 20, 2015

INDIAN IMMIGRANT SHOPLIFTING CASE DISMISSED

by Robert D. Lewin

DL, a 25 year old Electrical Engineer from India, came to the US several years under a work visa program for skilled engineers. On November 28, 2014 DL went shopping at Kohl’s in Chelmsford. He filled his shopping basket with a number of items and then went to the register to pay. He paid for all the items except a pair of shoes that he had “stashed” at the bottom of the shopping basket. All of this was observed on closed circuit television by a loss prevention officer. DL proceeded out of the store and was immediately stopped by the loss prevention officer. He was brought back to the store; the shoes were removed from the basket; and the Chelmsford Police were called to the store. DL saw his whole future going by him; a criminal record of any kind could cause his visa to be revoked and he could be sent back to India. DL was released from the store and was told that he would receive a notice from the court. DL contacted Attorney Robert Lewin of North Andover.

Attorney Lewin immediately contacted the Chelmsford Police and obtained a copy of the police report. For persons who are not citizens it is critical to try to get these cases resolved without a criminal complaint being issued. The police assured Attorney Lewin that this case was being set up for a Clerk’s Hearing; this is critical as the Clerk’s Hearing is the chance to resolve the case without the client being charged (i.e. without a criminal complaint being issued). DL subsequently received a Notice of Complaint Hearing

Attorney Lewin advocated on behalf of the client with the police. On March 20, 2015 Attorney Lewin and DL appeared at Lowell District Court for the hearing. Attorney Lewin explained to the Clerk-Magistrate the significance to DL of a criminal complaint not being issued. Attorney Lewin presented the Clerk with all the positive achievements that DL had made in his life. The police were on board with not having a complaint issue against DL. At the conclusion of the hearing the Clerk-Magistrate said that she would NOT issue a criminal complaint against DL; the hearing was continued for three months and as long as DL stays out of trouble the application for criminal complaint will be dismissed at the end of the three months and no one will have to return to court. As a result of this disposition it is important to note the following:

February 10, 2015

JUVENILE DOMESTIC ASSAULT & BATTERY ON GIRLFRIEND CASE DIVERTED

by Robert D. Lewin

CN, a 15 year old boy in the 9th grade at a local well to do Essex County high school, was in a dating relationship with 14 year old girl. In the fall of 2014 CN and the girl were “making out” According to the girl, CN stated that it would be fun to have rough sex and he scratched her on the back and hit her three times in the stomach. She told him to stop and she says that he did not. About one month after this incident the girl stated that she and CN had sexual intercourse. Word of this was spread to the school authorities who in turn notified the police. The police interviewed CN. CN told the police that he had never gotten physical with the girl and that the scratches had been an accident when he held her too tight. The police re-interviewed the girl. She stuck to her story and showed the police photographs of the injuries she allegedly sustained from CN. In addition she told the police that when she and CN would make out he would call her names like slut. Lastly the girl showed the police text messages from other girls stating that CN did the same things to them.

The police filed an application for a juvenile complaint for assault and battery against CN in the Essex County Juvenile Court. CN’s parents retained Attorney Robert Lewin from North Andover to represent CN. The application for complaint was scheduled for a hearing by the Clerk-Magistrate of the Juvenile Court. Attorney Lewin immediately contacted the police prosecutor and the coordinator of the Juvenile Diversion Program and advocated for CN’s case to be “diverted” out of the Criminal/Juvenile Justice System. The Essex County District Attorney’s Office runs a Juvenile Diversion Program. The purpose of the program is to allow a juvenile – in an appropriate case – to avoid having a criminal/juvenile record. If a juvenile is accepted into the Juvenile Diversion Program, the Juvenile Court Proceedings are suspended, no arraignment tales place, and no criminal/juvenile record is created. Upon successful completion of the Juvenile Diversion Program the criminal/juvenile charges are dismissed without any arraignment having taken place and no criminal/juvenile record is created. Because of the nature of the allegations made by the girl the police were hesitant to recommend diversion and actually wanted CN to be prosecuted in juvenile court for the alleged assault and battery. Attorney Lewin explained to CN and his parents that the case had to be prepared as if it were going to go to trial, but at the same time efforts to get the case diverted would continue. Attorney Lewin had several meetings with the police prosecutor and the Juvenile Diversion coordinator and advocated zealously for the case to be diverted.

On December 10, 2014 CN and his parents and Attorney Lewin appeared in Lawrence Juvenile Court. Attorney Lewin had had CN enroll in counseling with an adolescent counselor prior to the court date and Attorney Lewin had secured a favorable report from the counselor. At the hearing the Police were still somewhat reluctant to wholeheartedly endorse diversion, but they did not oppose it. The Clerk-Magistrate said she would recommend the case for diversion, but that the Diversion Coordinator would have the final say as to whether the case would be accepted into the diversion program. Because there was an allegation of boyfriend/girlfriend abuse everyone in the “court system” was reluctant to let the case go into diversion. Ultimately the Diversion Coordinator agreed that CN would be a good candidate for diversion and the case was accepted for diversion. CN is in the diversion program now and is doing well. The diversion program is designed to run for four to six months. It typically includes the Juvenile writing a letter on better decision making and – in a case of domestic violence – it almost always includes a program of counseling on teen dating violence.

February 9, 2015

HIT & RUN CHARGE AVOIDED

by Robert D. Lewin

On November 30, 2014 NP, a 30 year old mother of two young children was driving north on Route 495 in Chelmsford. She had her two children in the backseat in car seats. One of the children started coughing and NP turned to look back to make sure the child was okay. When she turned, her car veered to the right and she saw she was about to strike a car in the lane to her right. She pulled the steering wheel to the left and avoided a collision – so she thought. The driver in the car to her right flashed his lights at her and waived for her to pull over. She refused and continued on Route 495 to Route 93. She then proceeded onto Route 93 North and noticed the other vehicle was still following her with his hazard lights flashing. Suddenly two state police cruisers pulled NP over. According to the State Police report the other driver claimed that NP’s vehicle had struck his vehicle and failed to stop. Also according to the State Police report NP admitted to the officer that she knew that she had struck the other vehicle. The trooper issued NP a citation for Leaving the Scene of a Property Damage accident. NP immediately hired Attorney Robert Lewin from North Andover.

The case got strange. NP insisted that she spoke with a female state trooper and that she told the female state trooper that she had NOT hit the other vehicle. There was no damage to NP’s vehicle.NP denied speaking with the male state trooper. It was the male state trooper who wrote the police report and who claimed that NP had admitted striking the other vehicle. Attorney Lewin secured photos of NP’s vehicle showing no damage. Attorney Lewin obtained confirmation from NP’s insurance company that NO claim had been made against her insurance company for damage to the other car. Attorney Lewin was able to confirm that there was a female state trooper on scene and who that female state trooper was. The female state trooper denied any interaction with NP!

On January 22, 2015 NP and Attorney Lewin appeared at Lawrence District Court for a Clerk-Magistrate’s Hearing. The State Police Prosecutor read the police report which included NP’s alleged confession. NP was well prepared and testified. She vehemently denied any contact between her car and the other car. NP denied making any “confession” to any police officer. Attorney Lewin presented photos of NP’s car showing no damage. The State Police had no photos of the other vehicle. In addition Attorney Lewin presented a copy of NP’s Insurance Coverage Page showing that her vehicle was fully insured and lastly Attorney Lewin presented evidence that no claim for damage had been made for any alleged damage to the other vehicle. Attorney Lewin argued to the Clerk-Magistrate that the police report was not credible and that the state had failed to prove that there had been a collision or any damage to the other vehicle. The Clerk-Magistrate agreed and denied the application for a criminal complaint that had been filed by the state police. NP was not charged. The case was won in great part because it was well prepared.