Articles Posted in Shoplifting

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;

On August 12, 2016 BT, a 42 year old Registered Nurse from Salem, NH, was in TJ Maxx in North Andover, MA and she was stopped by store security and charged with shoplifting. She had gone into the store to return several items and to purchase several other items. While making the purchase two cosmetic items ended up in her bag without having been paid for. The problem for BT was that she was on probation in Peabody District Court for her last shoplifting case and that she had two more older shoplifting cases on her record. In addition to that, she had two additional theft charges on her record from out of state. On August 16, 2016 she appeared in Lawrence District Court for an arraignment and was then told to report to Peabody Court for a probation violation hearing. She went to Peabody Court and the Judge in Peabody Court locked her up for four days. Not wanting to go to jail for the new case in Lawrence District Court BT consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin, after reviewing the facts, encouraged BT to fight the new charge and go to trial. It seemed to Attorney Lewin that she was not guilty and that the evidence would prove she was not guilty. All of BT’s prior shoplifting cases had been continued without a finding. BT was concerned that a guilty finding would cause her nursing license to be suspended or revoked. It was clear to Attorney Lewin (and to BT) that BT had mental health issues. Attorney Lewin had BT furnish to Attorney Lewin all her mental health records for the last three years. Once Attorney Lewin had the mental health records the picture became very clear. BT had lead a very normal productive life for her first 39 years. She had no criminal record anywhere. She had graduated from college and was a very bright and productive nurse. Then at age 39 she became ill mentally and was diagnosed with manic-depressive syndrome and personality disorder. She was treated with medications and it was during this time that she accumulated no less than six criminal offenses. Following her four day stay at MCI Framingham (the women’s prison) BT determined to never put herself in this position again. She consulted with her doctors and her medication levels were adjusted.

BT told Attorney Lewin that if he could get the case continued without a finding she wanted to plead. Even though Attorney Lewin encouraged BT to go to trial, BT was adamant that she did not want to go to trial but wanted to try to get another continuance without a finding. BT understood that the likelihood of getting a fourth offense continued without a finding was very slim – particularly in light of the fact that BT was on probation for her third offense when this case happened. Attorney Lewin met with the Assistant District Attorney; the DA’s Office was willing to recommend Probation on a plea with a guilty finding.

On October 31, 2016 BT and Attorney Lewin appeared in Lawrence District Court and BT admitted to sufficient facts (similar to a guilty plea). The DA recommended a guilty finding with probation. Attorney Lewin made an impassioned plea to the Judge that BT’s repeated shoplifting was the result of her mental illness and her medications not being properly adjusted. Attorney Lewin pointed out that these issues were being firmly addressed. Attorney Lewin also pointed out that BT had spent 4 days in MCI Framingham and that was a learning experience – to say  the least. In the end the Judge adopted Attorney Lewin’s argument and continued the case without a finding. This result avoided a conviction and avoided the Board of Registration in Nursing from taking any action against BT’s nursing license.

KM, an eighteen year old college student, was caught shoplifting at Kohl’s in North Andover on February 13, 2016. She had picked up make-up to the tune of $190.00 and hidden it in her coat pocket. Unfortunately for her a loss prevention officer was watching her on video and saw everything. She headed passed the registers and out the door of the store without paying and was stopped by the loss prevention people and brought back into the store. The North Andover police were called and responded to the store. Subsequently, KM received a Notice of Complaint Hearing from Lawrence District Court. KM and her Mother consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin consulted immediately with the police prosecutor from North Andover. KM wrote out a letter of apology to Kohl’s and Attorney Lewin furnished a copy to the police prosecutor. In addition KM went to speak with a counselor. On March 24, 2016 KM and Attorney Lewin appeared in Lawrence District Court for a hearing before the Clerk-Magistrate. The Clerk-Magistrate found probable cause to issue a criminal complaint against KM, but referred her to the Essex County Diversion Program. The Diversion Program – if successfully completed – causes the criminal case to be “diverted” out of the criminal justice system and NO criminal record is created. In KM’s case the diversion program will require KM to complete 15 Hours of Community Service, write an essay, and meet with a counselor. As a result of this disposition KM will have NO criminal record. KM and her Mother left the court house happy with the result.

Over a three week period KW, a 40 year old Indian National and her husband, both from Andover, had been going to a gas station in Lawrence and stealing coffee and firewood. When they were discovered the owners of the gas station went back through the daily videos and observed KW and her husband shoplifting at the gas station ten times over a three week period. The next time KW and her husband arrived at the station the owner called the police and the police responded immediately. KW and her husband were both charged with shoplifting. KW and her husband received a Notice of Complaint Hearing before a Clerk-Magistrate. They thought they would be smart and go to the hearing without a lawyer. At the hearing the Clerk found probable cause to charge them and  criminal complaints were issued against KW and her husband charging each of them with Shoplifting.  KW is not a citizen and shoplifting is a crime of moral turpitude and presumptively deportable. KW consulted with and retained Attorney Robert Lewin of North Andover. Attorney Lewin immediately consulted with the District Attorney and pointed out to the DA that any guilty finding or even an admission by KW could cause her immediate deportation. After considerable advocacy by Attorney Lewin, the District Attorney agreed to dismiss the charges against both KW and her husband. On March 24, 2016 Attorney Lewin and KW and her husband appeared in Lawrence District Court and the Judge ordered all the charges dismissed. KW was thrilled with the result and gave Attorney Lewin a big squeeze and a hug outside the Court.

In the summer of 2015 a male in his early 20s went into a Market Basket store in Lawrence and stole a Mountain Dew. As he was headed out of the store he was confronted by a loss prevention officer. A scuffle broke out and the police were called. The police responded quickly and the male settled down. When asked for identification he said his name was SG and he gave a date of birth and an address in Nashua, NH. The police told him he would be receiving a summons to go to Court. About six weeks later a mam named SG received a summons to appear in Lawrence District Court to answer to charges of shoplifting and assault and battery. SG knew nothing about this. In fact, SG had never been in the City of Lawrence. Apparently, the male in the store had used SG’s identity as his own.

The real SG retained Attorney Robert Lewin from North Andover. Attorney Lewin took a detailed statement from SG as to where he was on the day and time of the offense and whom he was with. It was clear that SG had a solid alibi defense. Attorney Lewin filed the appropriate discovery motions to force Market Basket to produce the store security videos from the date and time of the alleged offense. The videos clearly showed the real offender and it was clear that it was not SG. When SG and his parents saw the video they immediately recognized who the real offender was – it was a cousin of SG’s (who would have known his date of birth). The cousin is a heroin addict so his behavior in the Market Basket was not a surprise.

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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:

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:

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:

NL, a 77 year old retired school teacher, and TN, her 75 year old husband, went shopping at a boutique store in Beverly recently. NL gathered up about $200.00 worth of merchandise that she wanted. Then she saw a purse that she just had to have. She took the purse and put it inside a shopping bag that she had. Subsequently she gave the shopping bag (with the purse inside) to her husband and directed him to go out of the store and to the car with the shopping bag; meanwhile she went to the register to pay for her other items. The loss prevention officers saw it all and brought both NL and her husband into the office. The Beverly police were called and responded to the store. The police told NL and TN that they had to stay out of the store and that they would receive a summons. The summons came. NL and her husband contacted Attorney Robert Lewin in North Andover. Because of their age and disabilities Attorney Lewin made a house call – he only does this with aged and infirm clients who do not have a way to get to his office. NL and TN were all nervous about having to appear in Court. Attorney Lewin told them not to worry, that he would get them a very favorable disposition. The case was scheduled for arraignment in Salem District Court on Wednesday, March 11, 2015. The day before the scheduled arraignment Attorney Lewin went over to the DA’s Office and explained the case to the DA. Attorney Lewin asked the DA to dismiss the case. The DA agreed. On March 11, 2015 NL, her husband, and Attorney Lewin appeared in Salem District Court. The case was called and Attorney Lewin explained to the Judge that the DA had agreed to dismiss the case. The Judge ordered the case dismissed. NL and TN were very relieved. The case got resolved both favorably and quickly due in part to Attorney Lewin going over to the DA’s Office and speaking directly with an Assistant DA before the Court date.

On August 27, 2014, EG, a 58 year old married mother of two children went into the Whole Foods Market in Andover. She filled her shopping cart with about $150.00 worth of food; unfortunately she filled her pocketbook with about $130.00 worth of vitamins. She went through the cash register and paid for the food but did not pay for the vitamins. As she exited the store she was stopped by a loss prevention officer. She was brought back into the store; the vitamins were removed from her pocketbook. The Andover Police were requested by the store and they responded. The Andover Police did not arrest EG but they took her information and told her she would be hearing from the Lawrence District Court. EG is a dental hygienist and she was concerned with the potential effects of having a criminal record. EG retained Attorney Robert Lewin from North Andover.

Attorney Lewin immediately contacted the Police Prosecutor from Andover and obtained a copy of the police report. In addition Attorney Lewin made sure that the case was being set up for a Hearing before a Clerk-Magistrate as opposed to a summons. When a person is accused of shoplifting and the amount in question exceeds $100 the police have two choices. They can file an application for criminal complaint at the Court and request that the Clerk-Magistrate set the application up for a hearing to determine whether or not a criminal complaint will be issued against the accused. The second choice the police have is to file the application for criminal complaint at the court and request that the Clerk-Magistrate issue the criminal complaint without a hearing and issue a summons for the accused to appear before a judge. This is a critical difference. When the application is set up for a hearing then the accused has the opportunity to “kill” the case before it goes any further. When the Clerk-Magistrate conducts a hearing, the Clerk-Magistrate has the discretion to NOT issue the criminal complaint against the accused. If the Clerk-Magistrate does NOT issue a criminal complaint then the accused does not have to go in front of a Judge and, more importantly, NO criminal record is created. There is no publicity of the charge.

On the other hand, if the Clerk-Magistrate decides to by-pass a Clerk-Magistrate Hearing and issues the complaint and a summons then the accused loses that opportunity to “kill” the case, the accused has to appear before a judge for an arraignment in open criminal court, and a CRIMINAL RECORD is created. That is why it is important to advocate with the police at the earliest possible moment to have the case set up for a hearing.