Massachusetts Criminal Lawyer Blog

March 20, 2017

DOMESTIC ASSAULT & BATTERY CHARGE DISMISSED: DEPORTATION AVOIDED

On December 31, 2016 (New Years Eve day) WQ, a 27 year old software engineer who is a resident alien from Russia, got into an argument with her husband. The couple live in Andover, MA. WQ lost control and physically attacked her husband scratching his face and arms and back. He fled the house and went to the police station. He told the police he did not want her arrested. The police photographed his injuries and then went to the house and arrested WQ. She admitted to the police that she had scratched him but she said it was in self-defense.

WQ consulted with and retained Attorney Robert Lewin of North Andover. Attorney Lewin was quite familiar with WQ and her husband as Attorney Lewin had represented her husband one year earlier in a domestic assault charge that had been filed against the husband by WQ. (See the posting on this blog dated February 24, 2016). The husband agreed to have Attorney Lewin represent his wife in this case.

After reviewing the facts it became clear to Attorney Lewin that a good case of self-defense could be made out by WQ. Attorney Lewin thoroughly prepared WQ for trial based on self-defense. Attorney Lewin and WQ had two lengthy trial preparation sessions during which Attorney Lewin prepared WQ for her testimony in Court.

March 20, 2017

ANOTHER DOMESTIC ASSAULT & BATTERY CHARGE DISMISSED

by Robert D. Lewin

On December 10, 2016 TD, a 63 year old corporate executive living in Andover, MA got into an argument with his wife. She claimed that TD grabbed her by the wrists and pulled her to the floor. She got on the phone and called 911; he grabbed an extension line and the two of them told the police that each had been assaulted by the other. The police responded to the house, spoke to each of them separately, and TD got arrested. TD and his wife had a long history of assault charges and abuse prevention orders (restraining orders) between them. TD consulted with and retained Attorney Robert Lewin of North Andover.

Attorney Lewin took a completely statement of the facts from TD and a complete history of TD’s relationship with his wife. It became clear that TD was the victim and that his wife suffering from mental illness. It became apparent that TD’s wife had attacked TD with a Swiffer Mop and then pulled TD’s hair at which point TD did grab his wife’s wrists in self defense.

Attorney Lewin advised TD to take the case to trial and the case was set down for trial on March 13, 2017 in Lawrence District Court. TD and Attorney Lewin met in Attorney Lewin’s office for two 1 1/2 hour trial preparation sessions. TD was thoroughly prepared for all the questions that Attorney Lewin would ask at the trial. In addition Attorney Lewin prepared TD for cross-examination (questions that TD would be asked by the prosecutor). On March 13, 2017 the TD and Attorney Lewin appeared in Lawrence District Court and answered ready for trial. Attorney Lewin had pictures of the Swiffer Mop. The prosecution then announced that they were declining to prosecute and the case was dismissed. (This was the third domestic assault and battery case in the last two weeks that Attorney Lewin was successful in getting dismissed.)

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.

February 2, 2017

Domestic Assault & Battery – DISMISSED

by Robert D. Lewin

In the late summer of 2016 NU, a 31 year old technician from Lowell and his then girlfriend KD were going through a breakup in their relationship. The biggest issue in the breakup was a “custody dispute” over who was going to get the dog. (You could not make this story up.) KD wrote to Judge Judy (the TV Judge) and told Judge Judy about the case. Judge Judy wanted the case for TV and flew both NU and KD to California where the two of them AND THE DOG appeared on the show. Judge Judy ruled that KD had not made out her case that the dog was hers and the dog remained with NU. On October 15, 2016 NU and the dog flew back to Massachusetts. On October 16, 2016 NU and the dog were in NU’s apartment. NU began receiving text messages from KD that she needed to see the dog and have “one last reunion with the dog”. KD pleaded that she was heartbroken and wanted to see the dog. NU said no. KD’s text messages continued and then she began calling him and then she told him that she was outside his apartment building in the street and would he bring the dog out. NU relented and brought the dog outside. KD and NU went to a bench in a park across the street from NU’s apartment building. KD’s car was parked in the street in front of NU’s apartment building. Suddenly NU grabbed the dog and ran through the park toward another car that was parked across the park. As she approached that other car the back door of the car opened and a man reached out for the dog. A second man was sitting in the driver’s seat of the running car. KD claimed that NU pushed her to the ground injuring her arm and leg and grabbed the dog and then ran back to his apartment with the dog. KD called the Lowell Police who responded. KD told the police the dog was hers and that NU had pushed her to the ground causing her to injure her arm and leg. The police went to NU’s apartment; the police arrested NU!! The police charged him with Assault & Battery on his ex-girlfriend. The police seized the dog and gave the dog to KD. NU was held in the police station overnight and was brought to Lowell District Court on the next morning and was arraigned. The case was continued for pre-trial hearing.

NU, after speaking with several lawyers, met with Attorney Robert Lewin from North Andover and hired Attorney Lewin. NU vehemently denied pushing or touching KD in any way. NU said KD got injured when she fell trying to run to the car with the dog.

On January 18, 2017 the case was called for jury trial in Lowell District Court. Attorney Lewin answered that he was ready for trial. Attorney Lewin then told the Judge that the two men – both of whom were present in Court and ready to testify for the Commonwealth – and KD had engaged in a criminal conspiracy to steal the dog from NU. Attorney Lewin said that each of the three witnesses for the Commonwealth could themselves be prosecuted for the crime of Conspiracy to Steal and that each of the three witnesses should be warned of their right not to incriminate themselves. The Trial Judge agreed and the Judge appointed three separate attorneys to speak to the three witnesses. Attorney Lewin explained to each of the lawyers the circumstances showed overwhelmingly that the two men and KD had conspired (agreed) to go to NU’s apartment in Lowell, to lure him and the dog outside, and then to grab the dog, throw the dog in the awaiting car with the two men, who would then drive off with the dog. Within ten minutes the two men let it be known that they would exercise their right not to incriminate themselves and NOT testify in the case. It took another twenty minutes and then KD (the ex-girlfriend) saw the light and she decided not to testify. The case was called again by the Judge and the DA told the Judge that their three witnesses were declining to testify and the Commonwealth could not go forward. Attorney Lewin immediately moved for a dismissal of the case and the case was ordered dismissed.

February 2, 2017

Violation of an Abuse Prevention Order – NOT Guilty

by Robert D. Lewin

On October 16, 2016, NU, a 31 year old technician from Lowell was arrested and charged with Assault & Battery on his ex girlfriend. He was held overnight and on October 17, 2016 he was brought to Lowell District Court to be arraigned. He was arraigned on the Assault & Battery charge. His ex girlfriend was present and had applied for an Abuse Prevention Order (Restraining Order). The Court conducted a hearing and granted the Abuse Prevention Order. The order, among other things, ordered NU to have no contact, directly or indirectly, “in person, by telephone, in writing, electronically or otherwise” with his former girl friend. NU and his former girl friend had been fighting over custody of a dog.

On October 20, 2016 NU and his attorney (not Attorney Lewin) were having a telephone conversation. The attorney asked NU for NU’s former girlfriend’s telephone number. NU went to his iPhone, went into his text messages, got the last text message from his ex-girlfriend, hit the detail button, then hit the i (information) button on the screen to get her phone number. NU then read the phone number to his attorney. NU then put the phone up to his cheek and continued his phone conversation with his lawyer. When NU finished the phone conversation the screen on his iPhone reverted to the text message screen and NU saw that a location ping had been sent to his ex-girlfriend. This apparently happened when NU put the phone up to his cheek. This was a “cheek” call, similar to a butt call. Within ten minutes the police were at NU’s house and he was arrested for violating the abuse prevention order.

NU and his family retained the same lawyer. NU and his family became dissatisfied with the work that the lawyer was doing on the two cases (the original Assault & Battery charge and now the Violation of the Abuse Prevention Order charge) and sought out another lawyer. NU met with Attorney Robert Lewin from North Andover for a free 2 hour initial consultation. NU and his family retained Attorney Lewin to handle both cases.

February 2, 2017

GUN CHARGE REDUCED – NO JAIL

by Robert D. Lewin

On November 16, 2016, DX, a 24 year old electrician from New Hampshire, was driving from a job site in Massachusetts back to his home in NH. He drove thru a red light in Salisbury and got pulled over by the police. When the officer reached the car and looked inside he immediately observed a fully loaded magazine for a handgun in plain view on the passenger seat. The officer immediately asked the driver if he had a LTC (License To Carry) or an FID (Firearm Identification Card) card and the driver replied no. The officer had the driver exit the car and immediately cuffed the driver. The driver was placed in the rear of the officer’s cruiser. During a subsequent search of the vehicle the handgun (a Smith & Wesson Military and Police 9mm Shield model sidearm) was located in the unsecured glovebox. Also located in the vehicle was a black concealed carry paddle holster. The rounds inside the magazine were found to be 9mm hollow-point rounds. DX was charged with Carrying a Firearm without a LTC (not in the home and not at place of business). This is a felony and carries a mandatory minimum 18 months in jail with no parole and no suspension of the sentence. He was also charged with possession of ammunition without an FID card. This is a misdemeanor and carries a sentence of up to two years in the House of Correction (no mandatory minimum sentence). The District Attorney and the police were concerned with several aspects of the case. The hollow point bullets are designed to maximize the injury they cause and the holster is designed to be worn in side the pants so as not to be visible. DX was brought to the police station and held on a high cash bail. The following morning DX was brought to Newburyport District Court, he was arraigned, and he was released on a $3,000.00 cash bail. DX and his family interviewed several lawyers and then retained Attorney Robert Lewin from North Andover.

Attorney Lewin met at length with DX and his family. Attorney Lewin explained that he needed to put together a persuasive memorandum for the District Attorney to get the District Attorney to reduce the gun carrying charge from the felony with its 18 month mandatory minimum sentence to a misdemeanor charge with no sentence. Attorney Lewin explained to DX that he was at real risk of getting the 18 month mandatory minimum jail sentence. Attorney Lewin had DX furnish Attorney Lewin with his electrician’s license, his high school and community college diplomas, and a letter from DX’s employer attesting to DX’;s qualities as a good employee.

Gun cases in Essex County are all reviewed by the First Assistant District Attorney for the County. Attorney Lewin immediately contacted the supervising Assistant District Attorney at Newburyport District Court (a prosecutor Attorney Lewin has known for over twenty years and with whom Attorney Lewin enjoys a great professional relationship). Attorney Lewin prepared a lengthy memorandum for the DA in which Attorney Lewin advocated for a reduction of the gun carrying charge and a probationary sentence. The supervising Assistant District Attorney in Newburyport sent Attorney Lewin’s Memorandum up to the First Assistant District Attorney for the County in Salem. After a review and some further discussion the District Attorney’s Office agreed to a reduction of the felony gun carrying charge to a misdemeanor with no jail time.

January 23, 2017

WACKY THEFT CHARGE DISMISSED

by Robert D. Lewin

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.

January 9, 2017

Hit & Run and False Report to An Insurer Charges Avoided

by Robert D. Lewin

DT is a 29 year old software developer from India in the US on a work visa. On December 10, 2016 he went out for a few drinks and on the way home crashed his car in Lowell. The Lowell police responded to the accident scene and DT gave the police a story that he was too drunk to drive and another fellow (whom DT did not know) was driving the car and that other fellow took off after the accident. The police did not arrest DT nor did they cite him. The next day he gave the same report to his insurance company. About a week later DT received a letter from the Lowell Police saying that they were investigating his accident and they had video evidence that he was in fact the driver. The letter indicated that the police were contemplating charging him with DUI and making a false statement to a police officer and hit and run. (A hit and run charge in Massachusetts can be based on a driver’s failure to identify himself as the driver at the scene of an accident.) DT’s insurance company contacted DT about his “story” and expressed concerns about the veracity of DT’s story. (Making a false insurance claim is a criminal offense.) DT contacted Attorney Robert Lewin of North Andover. Attorney Lewin explained to DT that Attorney Lewin knew the Lowell officer in charge of his investigation. Attorney Lewin explained to DT that the best thing to do in DT’s situation would be for DT’s lawyer to quickly communicate with both the Lowell Police Officer and the representative for the insurance company. DT told Attorney Lewin that DT had spoken to numerous lawyers and had gotten all kinds of advice but that Attorney Lewin was the first lawyer who set out a plan of action and was prepared to move on it immediately before things got worse. DT retained Attorney Lewin.

Within 2 hours of being retained Attorney Lewin had DT’s entire situation resolved. Attorney Lewin called the Lowell Police and spoke with the officer in charge of the investigation. The officer agreed that DT would not be charged with any criminal offenses arising out of the accident or his false statement to the officer at the scene of the accident. Attorney Lewin then spoke with a representative from the insurance company. The insurance company then not only agreed not to seek a criminal charge against DT for filing a false insurance claim but the company agreed to pay DT for the complete loss of his vehicle!

Attorney Lewin explained to DT the old adage: “When you find yourself in a hole, stop digging.” DT kept getting himself in deeper and deeper with his stories. By jumping on the case immediately and by contacting the police and the insurance company immediately, Attorney Lewin was able to avoid DT from being prosecuted and from being deported. DT is now a happy camper.

January 9, 2017

Warrants for Two Old DUI Cases Cancelled and Cases Dismissed

by Robert D. Lewin

In May of 1984 KW, then age 24, was arrested in Andover for Operating Under the Influence of Liquor and several other criminal offenses. One month later in June of 1984 KW was arrested again for Operating Under the Influence of Liquor in Wakefield. KW then flew the coop; he left Massachusetts and has been living in Arizona ever since. Warrants for KW’s arrest were issued in both Lawrence District Court and Malden District Court. He was able to get an AZ license and for years ignored the two warrants in MA. Recently Arizona refused to renew KW’s AZ license because he was under suspension in MA because of the two warrants. KW was hesitant to return to MA for fear that he would get locked up – particularly when he went to the first court to get the warrant cleared. He feared that the Judge in the first court would order him put into custody and held for the second court.

KW contacted Attorney Robert Lewin from North Andover. Attorney Lewin explained to KW that if he ever wanted to drive legally again he would have to get these warrants and the cases cleaned up. KW retained Attorney Lewin. Attorney Lewin was able to get the papers from both courts. The police officer in the Wakefield case retired just four months ago; however, no police report could be found in the Wakefield case. The police officer in the Andover case had retired almost ten years ago, but he was still around(!) and he had the police report from the case!!

On November 21, 2016 KW and Attorney Lewin went into Malden District Court and the Judge ordered the Malden Court warrant cancelled. The Malden Court case was then continued to December 2, 2016 to give the DA one last opportunity to see if they could put the case together. The Judge did not lock KW up on the warrant for Lawrence District Court but allowed KW to go with Attorney Lewin to Lawrence. Two hours later KW and Attorney Lewin appeared in Lawrence District Court. As in Malden District Court, the Judge ordered the warrant in Lawrence District Court cancelled and that case was continued to the same December date.