Clerk-Magistrate Hearings

March 4, 2023

ANOTHER HIT & RUN CHARGE AVOIDED

On December 10, 2022, at 4:00 am after a night out with friends, ND, a 25 year old man from Methuen, was driving to his home in Methuen when he struck a parked car in Haverhill. He was able to pull his car into an adjacent parking lot in Haverhill. He then left his car there and walked away from the scene. He called a family member who picked him up in Haverhill and brought him home to Methuen. The police responded to the accident scene. They found ND’s car and ran the plate and it came back to ND. Meanwhile, ND’s family member called the police to report the accident and to report that ND had been driving the car at the time of the accident. The police issued a citation to ND for Leaving the Scene of a Property Damage accident.

ND and his family contacted and retained Attorney Robert Lewin from Andover. Attorney Lewin instructed ND to immediately take the citation and bring it to Haverhill District Court to request a Clerk-Magistrate Hearing. Attorney Lewin explained to ND that a Clerk-Magistrate Hearing is an opportunity to “kill the case” before it goes to a criminal complaint. ND immediately brought the citation to Haverhill District Court and requested a hearing.

Attorney Lewin contacted ND’s insurance company to make sure that the owner of the parked car had been paid for the damage (total) to his car. This is important as the Clerk-Magistrate will want to know if the “victim” has been fully compensated for his loss. Attorney Lewin was able to get written confirmation of payment from the insurance company. Attorney Lewin also ran a copy of ND’s driver history and it was clean. This is important as the police will give the Clerk-Magistrate a copy of the driver history at the hearing and it is important to know ahead of time what it shows. In addition, Attorney Lewin ran ND’s criminal history and it only showed one minor criminal case that had been dismissed seven years previously. Attorney Lewin also reached out to the Haverhill Police Prosecutor to discuss a resolution of the case that would not involve the issuance of a criminal complaint against ND.

February 17, 2023

Another Domestic Assault & Battery Win

by Robert D. Lewin

BX, an attractive 30 year old female nurse at a large Boston hospital, had a whirlwind romance with DD, a 33 year old male engineer. They had a first date in October 2022 and by Thanksgiving they were talking of marriage. They went to NY and looked at Diamond Rings at Tiffany’s. He brought her to meet his family. He went to her parents to get permission to marry her. The two planned a trip to the Caribbean where they would seal the deal. Two days before they were to leave to go on the trip they got into an argument. The argument was over his failure to get rid of body soap in the shower that belonged to one of his former girlfriends. (He just could not let go of the memories that fragrance triggered!) Well BX got very angry with him and according to the police report she hauled off and slapped him twice across the face. She then left his place. He then called off the planned engagement and went to the Caribbean by himself. When he returned, his car, which he had left parked in the street, had several new dents in it that were not there before he left. He went to the police and reported the damage to his car and the two slaps to the face. The police applied for a criminal complaint against BX for Assault & Battery on a Household Member. (The police could not charge BX with the damage to DD’s car, as there was no evidence at all that she had caused the damage.)

BX is an emergency room nurse at a major Boston Hospital. A charge of Assault & Battery would cause her problems with the Board of Registration in Nursing and with her employer. It was critical to BX that a criminal complaint not be issued against her. BX had had a previous run in with the criminal law, and had hired Attorney Robert Lewin from Andover to represent her in that prior case. Attorney Lewin was successful in defeating that prior case at a Clerk’s Hearing. Once again BX turned to and retained Attorney Robert Lewin for help.

Attorney Lewin immediately contacted the Cambridge police prosecutor and explained the details of the relationship between BX and DD. Attorney Lewin advocated with the police prosecutor for no criminal complaint to be issued against BX. Attorney Lewin obtained the police reports and reviewed them in detail with BX. Attorney Lewin fully prepared BX for the Clerk-Magistrate hearing and prepared her to testify.

November 16, 2022

Open Container Violation – NOT Responsible

by Robert D. Lewin

On September 3, 2022 NB, a 19 year old college student from Lawrence, drove to the Wendy’s at the Loop in Methuen. It was close to 11:00 pm at night and there was a large gathering of young people in front of the theatre. NB was going a little too fast for the liking of the police and he got pulled over. When he put the window down the police spotted an open can of beer in the center console next to NB. The police ordered NB out of the car. A series of field sobriety tests was administered to NB and he passed them with flying colors. He had had nothing to drink. The police cited him for the open container violation. NB requested a hearing.

NB (and his father) consulted with and hired Attorney Robert Lewin from Andover. It turns out that NB’s father had been working on the car and had put an open beer in the cup holder while he was working on the car. When he finished working on the car he left the can of beer in the cup holder. When NB took the car later that night to go to Wendy’s he did not notice the can.

On November 15, 2022, NB and his father and Attorney Lewin appeared at Lawrence District Court for the Clerk-Magistrate Hearing. The police prosecutor from Methuen was present at the hearing. The police prosecutor read the citation but had no other report from which he could recite the facts as to what actually happened. When the Police Prosecutor was done the Clerk-Magistrate looked at Attorney Lewin and asked what if anything he had to say. Attorney Lewin smiled and said to the prosecutor “I know when to keep my mouth shut. The police did not present any narrative or evidence as to what had happened; therefore NB is entitled to be found NOT Responsible.” The Clerk-Magistrate then turned to NB and said to him: “Today is your lucky day. I find you NOT Responsible.” NB and his Dad left the courthouse thrilled.

November 15, 2022

Tinted Window – NOT Responsible

by Robert D. Lewin

On August 18, 2020, EA, a 23 year old metal polisher, was pulled over by the state police in Methuen. His front driver side and passenger side windows appeared too dark for the trooper. The trooper got out his measuring device and measured the amount of tint. The trooper cited EA for excessive tint. EA requested a hearing. EA had previously retained Attorney Robert Lewin from Andover for a hit and run charge which Attorney Lewin successfully defended. EA again consulted with and hired Attorney Lewin to defend against this charge.

On November 15, 2022, Attorney Lewin and EA appeared at Lawrence District Court for a clerk-magistrate hearing. The State Police were present. The Trooper testified that he measured the tint on the windows with his device and the tint was 23%. Attorney Lewin asked the Trooper one question. What is the legal limit for a lawful tint? The Trooper looked at Attorney Lewin and at the Clerk-Magistrate; the Trooper smiled; and then said “I don’t know!!” Attorney Lewin turned to the Clerk-Magistrate and before Attorney Lewin could ask for a not responsible finding the Clerk-Magistrate marked the court papers NOT responsible.

The case was simple enough; but it shows that Attorney Lewin was on his toes and picked up immediately on the missing piece in the case. EA who has a lengthy record and who needed to beat this ticket to get his license back was thrilled. (EA’s case was the first of two Motor Vehicle Clerk Hearings that Attorney Lewin had on November 15, 2022 both of which Attorney Lewin won.)

September 15, 2022

Assault & Battery on an Elderly Person Charge Avoided

by Robert D. Lewin

DM, an 80 year old male resident at an elderly housing facility in Haverhill was accused of assaulting DI, a 72 year old female resident at the same facility. DM was walking in the hallway of the facility and opened a window in the hallway to get some fresh air into the hallway. DI, whose room was slightly down the hallway from the window, did not want the window open and closed the window. DI claimed that DM then choked her to get her away from the window which he then reopened. DI went to her room and called 911. The police responded to the facility and interviewed both parties. DM denied choking DI. DM told the police that DI had assaulted him. DM did tell the police that after DI closed the window he reopened the window purposely to aggravate DI. The police filed an application for a criminal complaint against DM at Haverhill District Court seeking a complaint of Assault & Battery on an Elderly Person. DM has a daughter who assists DM with his affairs. DM’s daughter contacted Attorney Robert Lewin from Andover. Attorney Lewin set up a zoom conference with DM and his daughter and took a complete statement of the facts from DM and thoroughly discussed the case with them. DM and his daughter retained Attorney Lewin.

DM’s daughter and DM himself were both extremely helpful to Attorney Lewin in preparing a defense to the charge. DM’s daughter furnished Attorney Lewin with photographs of the window and hallway and of DM (and his walker). These photographs would prove to be very helpful later. DM himself furnished Attorney Lewin with his medical records showing that DM had only a 2% use of his right hand and a 22% use of his left hand making it almost impossible for DM to have “choked” DI. In addition DI had been involved in two similar incidents in which DI had exhibited aggressive behavior toward another resident. Attorney Lewin was able to secure the paperwork on those prior incidents.

On September 14, 2022 all the parties appeared via zoom for a Clerk-Magistrate Hearing before the Clerk-Magistrate at Haverhill District Court. Present on the zoom were Attorney Lewin, DM, DM’s daughter, the Haverhill Police Prosecutor, DI, and DI’s sister. Attorney Lewin presented (electronically) to the Clerk-Magistrate the photographs of the window, the hallway, and of DM himself with his walker. Attorney Lewin also presented to the Clerk-Magistrate DM’s medical records showing his disability. Attorney Lewin also presented to the Clerk-Magistrate the incident reports showing that DI herself had on prior occasions acted belligerently towards another resident at the facility.

May 18, 2022

Possession of Heroin -NO Complaint Issued

by Robert D. Lewin

On February 17, 2022, AZ (not the person’s real initials), a 29 year old carpenter foreman for a large construction company, drove to Andover to purchase heroin. He drove to the parking lot of a popular business off Route 93 – a parking lot that is well known to the Andover PD and the State Police as a place where drug transactions are often completed. AZ, then having spoken to his supplier on the phone, drove to a large apartment complex (in Andover) and purchased a small quantity of heroin. AZ then returned to the parking lot (!) and prepared to ingest (by snorting). A plain clothes police officer observed all of AZ’s comings and goings. The officer had actually followed AZ from the parking lot to the apartment complex and then back to the parking lot. The officer then approached the passenger side and looked in (NOT illegal). The Officer saw AZ looking down at his knees. The police report reads: “I observed in plain view, AZ holding a small cut orange straw and had a clear hard plastic object on his lap area that held a visible line of tan powder”. The police had conversation with AZ, seized the drugs, but sent AZ on his way and told him he would receive paperwork to go to court. Shortly thereafter, unbeknownst to AZ, the DEA came in and arrested AZ’s supplier at the apartment complex.

AZ had a prior arrest for Possession of Heroin in NH and could not afford a conviction here in MA.

AZ consulted with and retained Attorney Robert Lewin from Andover. Attorney Lewin explained to AZ that Attorney Lewin would take care of the case and that it was AZ’s job to get off the Heroin. AZ sought out a counselor for depression and went cold turkey getting off the Heroin. Attorney Lewin advocated on AZ’s behalf with the Andover PD.

May 18, 2022

Unlicensed Operation Charge DISMISSED at Clerk-Magistrate Hearing

by Robert D. Lewin

AU, a 24 year old architect, moved from Wisconsin to North Reading, MA in early 2021. On December 10, 2021, AU was involved in an accident in Peabody. The police responded to the scene and AU produced his Wisconsin license. When the police asked how long he had been living in MA, AU responded that he had been in MA since the beginning of the year. The police cited AU for unlicensed operation. AU’s work involves certain security clearances and he could not afford to have a criminal record.

AU consulted with and retained Attorney Robert Lewin from Andover. AU immediately went to the Registry (RMV) and got a MA license. AU also immediately requested a Clerk-Magistrate hearing.

Attorney Lewin went over to the Peabody District Courthouse and met personally with the Peabody Police Prosecutor. Attorney Lewin showed the prosecutor that AU had obtained a MA license.

December 27, 2021

Assault & Battery Charge On A Child Avoided At Clerk-Magistrate Hearing

by Robert D. Lewin

On November 5, 2020, LT, a 43 year old firefighter in a town north of Boston, was at home with his wife and two sons, ages 5 and 6. The five year old son has behavioral issues and throws tantrums when he does not get his way. The family had supper together and the LT’s wife was getting the two boys ready for bed. The five year old began demanding to eat more. His mother told him no and he had a meltdown. Her was kicking and screaming. LT then got off the couch and went over to the five year old. LT told this son to stop screaming and LT started to count 10, 9, 8 … The boy then stood up, stuck his face out toward LT, and screamed at LT. LT had his right hand extended and swept three fingers across his sons cheek striking the boy’s neckline and chin line. LT then picked his son up and carried him into his bedroom and placed him down on the bed. The sweep across the chin/neck area had left very visible and distinct red marks on the five year old’s neck.

The next morning, with the red marks very visible, the five year old went to school. A teacher noticed the marks and asked the five year old what happened and he told the teacher that his father had hit him the night before. The teacher – being a mandated reporter- immediately called DCF and the police. DCF and the police went to LT’s home to investigate and they confirmed that what the boy told them was true.

The police contacted LT and asked him to come to the station. LT was interviewed at the station by the police and DCF and he admitted to striking his son. DCF opened an abuse case against LT and the police filed an application for a criminal complaint against LT at Lowell District Court. DCF told LT and his wife that LT could not be left alone with the boys or DCF would go to court to seek custody of the boys.

December 24, 2021

Assault & Battery & Disturbing the Peace Charges Against a Veteran Avoided At Clerk-Magistrate Hearing

by Robert D. Lewin

SS, a 40 year old Gulf War Veteran from NY State, came to Methuen for the funeral of a fellow veteran. SS and several other veterans arrived in Methuen on Friday, July 16, 2021. They all checked into a hotel and went out for dinner and some drinks. At 3:00 AM on Saturday, July 17, 2021 the police were dispatched to the parking lot of the hotel on the report of a man with a knife acting belligerently. The police arrived and saw SS attempting to fight one of his fellow veterans. The police attempted to deescalate the situation but SS did not respond to any of their requests. Ultimately the police were forced to taze SS and he fell to the ground.

The police spoke to SS’s fellow veterans who informed the police that SS suffered from PTSD. Rather than arrest SS, the police brought SS to Holy Family Hospital in Methuen. The police filed an application for a criminal complaint against SS for Assault & Battery and Disturbing the Peace at Lawrence District Court. The Application was set down for a hearing on Friday, October 1, 2021.

SS consulted with and retained Attorney Robert Lewin from Andover. Attorney Lewin immediately obtained a copy of SS’s DD-214 (Discharge Summary) and a copy of SS’s VA Determination of Disability. It was clear to Attorney Lewin that this episode was a direct result of SS’s PTSD. In addition, Attorney Lewin got confirmation that SS was in treatment at the VA. Attorney Lewin spoke with the police prosecutor and furnished the police prosecutor with copies of the documents that Attorney Lewin had obtained.

December 19, 2021

Shoplifting Charge (Fourth Offense) Avoided

by Robert D. Lewin

On October 2, 2021, NS, a 38 year old alien (green card holder) from India was caught shoplifting in Macy’s in Saugus. Macy’s had her on video and actually had her on video on three prior occasions shoplifting in the store. The loss prevention officer escorted NS back to the security office and the Saugus Police were called. The Saugus Police took her information and did not arrest her; they told her she would receive a notice from the Lynn District Court.

NS and her husband began a search for a lawyer. NS and her husband consulted with and retained Attorney Robert Lewin from Andover. Attorney Lewin explained how lucky NS was that the police did not arrest her. They could have and then she would have been fingerprinted and she would have to appear before a Judge and a criminal record would have been created. Attorney Lewin immediately contacted the Saugus Police Prosecutor to request that the case be set up for a Clerk-Magistrate Hearing. This was done.

Attorney Lewin recognized that NS had a serious problem. NS completely lacked the ability to see the situation she was in. NS kept saying it was an accident and a mistake. Attorney Lewin pointed out that stealing merchandise four times from the same store was not an accident or mistake. On four different occasions NS had gone into the store with the intention to steal; she had picked up merchandise, placed it into a bag, then hidden the merchandise under other items in the bag, and then walked out of the store without paying. Those were all intentional acts that required planning and execution. Attorney Lewin explained to NS and her husband that if Attorney Lewin tried to sell her behavior to the police prosecutor and the Clerk-Magistrate as an “accident or mistake” that the police would not cooperate nor would the Clerk-Magistrate.