Articles Posted in Larceny/Stealing

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.

TK, a 52 year old sales manager at a car dealership in Burlington, MA, was charged with Larceny By Check Over $250 back in 2001 in Woburn District Court. The charge arose out of a series of bad checks that TK had written in 2001. The checks were written on a business account that TK had. The account had virtually no money in it. TK simply walked away from the case and a warrant for his arrest was issued. For some reason the Registry of Motor Vehicles did not pick up on the warrant until 2017 at which time the Registry revoked TK’s license. TK needed the license to work at the car dealership. TK contacted and retained Attorney Robert Lewin from North Andover, MA.

Attorney Lewin went over to Woburn District Court and obtained copies of all the relevant court papers and police reports. From the police report Attorney Lewin was able to determine that the bank which was victimized in the case was no longer in business. Attorney Lewin approached the Assistant District Attorney in Woburn District Court and was able to furnish the Assistant District Attorney with evidence that the State (the Commonwealth) could not at this time successfully prosecute the case: the bank was no longer in business;  it would be virtually impossible to find the witnesses (16 years later); and no one could identify TK as the person who wrote the bad checks.

On July 31, 2017 TK and Attorney Lewin appeared in Woburn District Court. The case was called and the Assistant District Attorney stood up and told the Judge that the Commonwealth could not go forward with the case. The Judge looked over at Attorney Lewin and Attorney Lewin then moved (asked) for the warrant to be recalled and the case dismissed. The Judge granted Attorney Lewin’s motion (request). The warrant was recalled (cancelled) and the charges against TK were dismissed.

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;

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.

XD, a 60 year old software engineer, is an avid (perhaps over avid) environmentalist. Every day on his way to work he would pass a house in North Andover the owner of which had a pest control and pesticide business. On the front lawn of this North Andover home the owner had a small sign advertising his pest control business. XD does not approve of pesticides. XD would leave for work very early before the sun would come up. Over a period of months he would periodically remove the pest control signs. The homeowner decided to set a trap for this two legged pest. The homeowner set up a camera and one Saturday morning sat in his truck and waited. Sure enough XD came along; XD parked his own vehicle up the street, exited his vehicle, walked down to the lawn, walked over to the sign, and pulled the sign from the ground. The owner leaped from his truck. XD ran to his vehicle and drove away, but not before the homeowner got the license plate. Within an hour the North Andover Police showed up at XD’s door. XD admitted his wrongdoing and the police told him he would receive a summons. The summons came and XD was charged with Larceny. XD consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin told XD that the input of the home/sign owner would be important and it would be helpful if we could win him to XD’s side. Attorney Lewin called the home/sign owner and engaged him in a productive and helpful conversation. Sometimes knowing what NOT to say is more important than knowing what to say. Attorney Lewin was able to get the home/sign owner to agree to speak with the District Attorney and to get him to tell the District Attorney he was not opposed to the criminal charge being dismissed. XD agreed to pay the home/sign owner restitution for the dozen signs that XD had removed ($250.00 total).

On October 21, 2016 XD and Attorney Lewin appeared in Lawrence District Court for XD’s arraignment. Prior to the arraignment Attorney Lewin had already spoken to the District Attorney about the case and the DA had agreed to a general continuance of the case for six months with a dismissal. On October 21, 2016 the case was continued generally to January 20, 2017. On January 20,2017 the case was dismissed. A general continuance is not a plea bargain; it does NOT involve a guilty plea or an admission of any kind. It is NOT a continuance without a finding which is a plea bargain and which does involve an admission of guilt.

Because XD works in a security clearance environment avoiding a conviction or even an admission of guilt was important. With a general continuance and a dismissal there was no conviction, no finding of guilt, no “admission to sufficient facts”. On January 20, 2016 XD walked out of Lawrence District Court a happy man.

LN, a 53 year old woman from a metro north suburb, is charged with two counts of Larceny in Concord District Court. She was employed as a cashier at a local pharmacy and is accused of stealing two gift cards from the pharmacy after putting $500 on each of the gift cards. LN has retained Attorney Robert Lewin from North Andover to represent her in Concord District Court. One of the first things Attorney Lewin did was to run her criminal record to make sure there were no surprises on the record. Sure enough, there was a warrant outstanding for LN’s arrest as the result of a default in a Larceny case in Woburn District Court going back to 1989. Attorney Lewin explained to LN that it was important to get the warrant taken care of before LN’s first appearance in Concord District Court, which is scheduled for January 15, 2016. (Attorney Lewin explained to LN that if the warrant in Woburn Court was still outstanding when LN and Attorney Lewin go into Concord District Court that the Judge in Concord District Court could order LN locked up and transported free of charge in the Sheriff’s van to Woburn District Court after spending a night in MCI Framingham.) Attorney Lewin went to Woburn District Court and obtained copies of the papers in the Woburn Court Case.

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In February of 2012 DW walked into the Credit Union in Peabody where he had an account. DW had 2 US Postal Money Orders with him – or at least what appeared to be US Postal Money Orders. DW deposited the two money orders which totaled $1,980.00. Several days later DW withdrew the money from his account. Sometime later the Money Orders were determined to be fraudulent and the Credit Union went to debit DW’s account the $1,980 but his account had no funds in it. The Credit Union went to the police and a criminal complaint was taken out against DW in Peabody District Court for 2 counts of forgery and 2 counts of uttering a forged money order. All four charges are felonies and carry serious penalties. By the time the Court mailed out a criminal summons for DW to appear in Court he had moved and did not receive the summons. A warrant issued for DW’s arrest. Three years later in 2015 DW learned of the warrant and went to Peabody District Court and got the warrant cancelled. He was arraigned on the four charges and his case was continued for a pre-trial hearing to September 30, 2015. DW retained Attorney Robert Lewin of North Andover. (Attorney Lewin had successfully represented DW years earlier in a criminal motor vehicle matter in Malden District Court.)
Attorney Lewin immediately went over to the Peabody District Court and obtained a copy of the police report and the report from the Credit Union. It became clear to Attorney Lewin that there was no evidence or proof that DW knew that the two money orders were fraudulent. Knowledge is a necessary element of all the four charges against DW. The Commonwealth has to prove that DW knew the money orders were fraudulent. Moreover, there was absolutely no evidence or proof that DW forged or made the false money orders. Sure the Credit Union had him on video depositing the forged money orders but that is not proof that he forged them or that he knew they were forged. In any event Attorney Lewin went to the DA’s Office and told them DW was innocent, there was no proof that he forged the money orders and there was no proof that he knew they were forged. From a civil (non-criminal) law point of view DW owed the Credit Union the $1,980.00. But he was charged criminally. On September 30, 2015 DW and Attorney Lewin appeared in Peabody District Court. DW agreed to pay the Credit Union the $1,980.00 and the Commonwealth agreed to dismiss all the charges. DW walked out of the Court a happy man.

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:

The problem with having a larceny (or even a shoplifting charge) on your record is that no one wants to hire a thief. Getting a job can be made difficult if you have a larceny conviction on your record. On August 30, 2014 H & W (a husband and wife in their early 30s from Salem, NH) got caught stealing 10 metal shopping carts from a large supermarket in North Andover. The facts of the case were unusual in the extreme. H worked for a retail store and was in charge of inventory. His job required him to off load merchandise from delivery trucks and distribute the merchandise throughout the retail store. The retail store did not have large carts and moving the merchandise became a huge chore. H got the idea that he would “borrow” ten shopping carts from the supermarket and use them to offload merchandise. On August 30, 2014 at 3:00 AM H and his Wife drove to the supermarket and each of them took five large shopping carts and began to push them on a half mile journey to the retail store where H worked. The journey took them up a long steep hill. Those carts get heavy. About half way up the hill they were exhausted and stopped for a breather. Along came the North Andover Police. The police made H & W turn around and push the shopping carts back to the supermarket. The police decided not to arrest H & W but told them they would be summonsed to court for an arraignment. In most criminal cases a “criminal record” is created when the arraignment is held. H & W received summonses to appear in Lawrence District Court for an arraignment to be held on November 5, 2014. H & W both wanted to avoid having a criminal record for larceny. H & W retained criminal Attorney Robert Lewin from North Andover. Attorney Lewin immediately contacted the District Attorney’s Office at Lawrence District Court. Attorney Lewin prepared a background statement for both H & W and then sat down with an Assistant District Attorney and advocated for the DA’s Office to agree to dismiss the charges BEFORE H & W were arraigned. Neither H nor W had a criminal record and this incident was incredibly stupid. This was not the kind of incident that warranted giving H & W a criminal record for a felony charge of Larceny. In a “rare” moment of reasonableness the DA’s Office agreed not only to dismiss the charges but to dismiss them prior to arraignment so that a criminal record would not be created. On November 5, 2014 H & W and Attorney Lewin appeared in Lawrence District Court. The case was called and Attorney Lewin informed the Judge of the agreement that had been reached. The Judge then ordered the case against H and the case against W dismissed prior to arraignment. As a result neither H nor W has a criminal record. It is as if the incident did not happen.

On September 16, 2014, GN, a 57 year old man from Wilmington, was accused of assaulting a female neighbor. The neighbor’s 11 year old son had been playing ball in the street in front of GN’s house; the boy claimed that the ball went under the bushes directly in front of GN’s house and that before the boy could retrieve the ball GN came out of the house, picked the ball up, and put it in his pocket. The boy went home and told his mother. The mother came down to GN’s house and rang the bell. GN came to the door and the neighbor demanded that he return the ball. GN denied that he had the ball and said he did not know what she was talking about. The neighbor walked away from the door and as she walked down the driveway she grabbed GN’s granddaughter’s tricycle and shouted to GN you’ll get the trike back when I get the ball back.GN bolted from the front door and according to the neighbor grabbed the tricycle and then shoved her. The neighbor called the police and the police responded. GN denied shoving the neighbor; he admitted to grabbing the tricycle. The neighbor applied for a criminal complaint against GN and GN received a notice of a complaint hearing from Woburn District Court. GN retained Attorney Robert Lewin. Attorney Lewin immediately advised GN to apply for a criminal complaint against the neighbor for larceny (stealing the tricycle) in order to “level the playing field”. GN followed Attorney Lewin’s advice. The Clerk-Magistrate at Woburn District Court sent the neighbor a notice for a hearing against her for larceny. The two hearings were scheduled for the same time. In Massachusetts a person has a right to use reasonable, non-deadly, force to protect their property and to prevent it from being stolen. On October 24, 2019 the hearing took place. The Clerk-Magistrate heard both sides. Attorney Lewin had photos of the scene and had GN, his wife, and his daughter testify. Attorney Lewin had made a copy of the relevant law (that a person has right to use reasonable, non deadly, force to prevent their property from being stolen) for the Clerk-Magistrate. The Clerk-Magistrate found no probable cause to issue a criminal complaint against GN. GN walked out of Woburn Court having no criminal record and no criminal complaint to defend against.