Clerk-Magistrate Hearings

September 22, 2020

Road Rage Charge Avoided

On February 27, 2020 NH, a 34 year old maintenance technician, was working on a job site in North Andover. He got a call to report back in to the company headquarters in Haverhill. He got in his company van and headed up Route 125N to Industrial Way. As he proceeded up Industrial Way toward the entrance ramp to I-495 North he observed a black jeep behind him to his left. The road ahead was narrowed by cones from two lanes to one lane. The Jeep passed him on the left and then had to cut back sharply in front of NH to avoid striking the cones. NH had to slam on his brakes to avoid colliding with the Jeep which had pulled directly in front of NH. The Jeep then proceeded ahead and as the Jeep approached the split where the ramp to I-495N bears to the right it appeared as if the Jeep was going to proceed straight on Industrial Way. Suddenly and without signaling the Jeep pulled to the right onto the I-495 ramp again cutting in front of NH. Once again NH had to slam on his brakes to avoid striking the Jeep. The Jeep continued down the ramp onto I-495N travelling at about 20 mph. Once on I-495 NH then pulled to the left, passed the Jeep, and then after signaling pulled back to the right and exited I-495 at exit 50 to head to his company headquarters. Several hours later NH got a call from the State Police. The police asked NH if he had been involved in an incident with another vehicle. NH described to the State Trooper exactly what had happened with the Jeep. Some time later NH received a citation in the mail for Operating to Endanger the Lives and Safety of the Public. This is a criminal offense that carries up to 2 years in jail plus a mandatory loss of license.

The driver of the Jeep called the State Police and then went to the State Police Barracks and filed a report. She claimed that after she passed by NH on Industrial Way and pulled in front of him that NH was tailgating her dangerously as they proceeded down the ramp onto I-495N. She then claimed that NH “whipped around [her] on the second lane, pulled next to [her], and then moved into [her] lane in an obvious attempt to ram [her] into the cement barrier.” The police viewed this as a road rage incident.

NH was smart. He immediately took the citation and brought it to Haverhill District Court to request a Clerk-Magistrate Hearing. NH then contacted and retained Attorney Robert Lewin of Andover. Attorney Lewin immediately obtained a copy of the police report and sat down with NH and reviewed the report in detail. Attorney Lewin found NH to be a very credible witness. Subsequently, the case was set down for a Clerk-Magistrate Hearing on September 22, 2020. Normally, most criminal lawyers will not have their clients testify at a Clerk-Magistrate hearing. The reason for this is that in the event the Clerk-Magistrate issues a criminal complaint and the case subsequently goes to trial the Defense wants to have a clean slate – that is, the Defense does not want the government to have the benefit of the accused’s (recorded) testimony from the Clerk-Magistrate Hearing. In NH’s case, however, NH had already given a complete written statement to the State Police. It was a very detailed statement. As a result there was no downside to having NH testify at the hearing.

August 15, 2020

OUI Drugs Charge and Negligent Operation Charge Defeated At Clerk-Magistrate Hearing

by Robert D. Lewin

On Wednesday, January 29, 2020 at about 2:30 in the afternoon, BW, a 27 year old Registered Nurse, was driving on the Mass. Turnpike on her way to Connecticut. The State Police received numerous calls from motorists on the Turnpike that her vehicle was weaving on the roadway. A State Trooper pulled in behind her vehicle and observed it go from the left hand lane into the median of the highway kicking up debris. The Trooper put on his emergency lights and BW pulled to the right and, after signalling with her right blinker, pulled across the highway and off to the right into the breakdown lane and stopped. The Trooper pulled in behind her and approached her vehicle. The Trooper made observations of BW and then had her exit her vehicle and perform certain roadside assessments which according to the Trooper she failed. The assessments included a one legged stand, a nine-step heel to toe walk, a balance test, and a horizontal gaze nystagmus test. According to the officer she failed all the tests. In BW’s open purse the officer observed a prescription bottle of gabapentin, a prescription medication for nerve pain. The officer charged BW with operating under the influence of drugs, specifically gabapentin. The officer also charged BW with Negligent Operation.

BW consulted with many lawyers. On February 16, 2020 BW had a two hour initial consultation with Attorney Robert Lewin from Andover. The OUI Drug statute in Massachusetts is a very detailed and specific statute. It defines in very specific terms the types of drugs that trigger the application of the law. Gabapentin, which is a depressant substance (it depresses electrical activity in the central nervous system and is used to treat seizures and nerve pain) at first glance would appear to be a drug that triggers the OUI Drug law. BW and Attorney Lewin discussed the law in detail. BW retained Attorney Lewin. For BW it was important that she win; if she were to be charged and/or convicted her Nursing License could be in jeopardy.

Attorney Lewin thoroughly researched the law and the science. The Massachusetts OUI Drug law makes it unlawful to operate a motor vehicle on a public way while under the influence of a narcotic drug or a stimulant or depressant substance as defined in the law. The law sets out a very technical definition of depressant substance. Attorney Lewin thoroughly researched the science and the law and was able to establish that gabapentin – although it was a depressant substance – did not meet all the requirements of the law; specifically the law required that the substance be “designated by regulation of the U.S. Attorney General as having a potential for abuse”. Attorney Lewin did a thorough research of the Federal Regulations and it turns out that the US Attorney General has NOT so designated gabapentin. Attorney Lewin informed BW of his findings and told her that she was going to win her case.

April 5, 2020

Reckless/Negligent Operation Charge Avoided at Clerk-Magistrate Hearing

by Robert D. Lewin

On July 24, 2019 SB, a 74 year old retired administrator from North Andover, was driving from Peabody Center westerly on Route 114 toward Danvers. As he traveled westerly he approached the section of Rt. 114 where the North Shore Mall is on the left and Kappy’s Liquors is on the right. He was in the third lane from the right. According to SB he applied his brakes and the car did not slow. He then turned his steering wheel to the right to pull into the parking lot of Kappy’s. There was a motocycle in the lane immediately to SB’s right. When SB made that sudden turn he collided with the motor cycle. The cyclist was thrown off the motorcycle and was severely injured. He had a fractured leg and a possible head injury. SB continued into the parking lot of Kappy’s and the police were called by another motorist. SB waited at the side of Rt. 114 and the police arrived shortly thereafter. Three witnesses at the scene all told the police that “the motorcyclist was travelling straight ahead, and the other vehicle involved turned in front of him resulting in the crash”. The motorcyclist told the police that he was travelling straight ahead when SB’s vehicle suddenly turned directly in front of him causing the crash. The police cited SB for reckless operation.

SB spoke to at least 4 criminal lawyers. SB met with Attorney Robert Lewin from Andover. They had an initial free consultation that lasted 2 hours. Attorney Lewin explained to SB that reckless operation carried a potential jail sentence of 2 years and a mandatory loss of license. Attorney Lewin downloaded SB’s driver history from the Registry of Motor Vehicles and it was terrible. SB had a prior conviction for Reckless Operation, 4 surchargeable at fault accidents, and 12 other moving violations. Attorney Lewin could sense immediately that SB was going to be a difficult client. SB thought he had all the answers and he thought he knew exactly how the defense should proceed. He was dead wrong and Attorney Lewin told him so. SB retained Attorney Lewin.

Attorney Lewin explained to SB why it was so important to try to kill the case at a Clerk-Magistrate Hearing. SB brought the citation to the Peabody District Court and requested a Clerk-Magistrate Hearing. Attorney Lewin then went over to Peabody District Court and obtained copies of all the police reports. More importantly, Attorney Lewin met with the Police Prosecutor from the Peabody Police Department. The purpose of the meeting was to advocate on SB’s behalf to get the case resolved at the Clerk-Magistrate hearing without a criminal complaint being issued against SB – a very tall order given the facts of the case, SB’s driver record, and the severe injuries sustained.

April 4, 2020

Assault & Battery Charge Avoided in Newburyport District Court

by Robert D. Lewin

On December 21, 2019 two men (JG and JM) who shared an apartment in Newburyport went out for a few drinks. They returned back to the apartment. It is at this point that the two versions of what happened differ wildly. The police reports contain the following: According to JG, who owned the lease on the apartment, JG asked the roommate JM to leave the apartment. When JM refused to leave an argument broke out and JM punched JG and pushed him to the floor knocking over a Christmas tree. According to JM, when they returned from the bar JM tried to go to sleep but JG began arguing with JM and JG pushed and scratched JM at which point JM pushed JG away. Both men told the police that the other man was the aggressor. Both men told the police that the other man hit first. And both men told the police they acted in self-defense. JG had visible injuries and he had been the one that called the police. JG requested medical attention and was brought to the hospital. The police arrested JM at the scene and the police told JG that he would receive a notice to go to court.

On December 23, 2020 JM was arraigned in Newburyport District Court and his case was continued for a pre-trial hearing to January 27, 2020. JM was appointed a lawyer. JG received a Notice of a Criminal Complaint Application that had been filed by the police. The Notice informed JG that the police had filed an application against JG at the Court wherein the police were asking the Clerk-Magistrate of the Court to issue a criminal complaint against JG for Assault & Battery. The Notice further informed JG that a hearing would be held at the Court by a Clerk-Magistrate on January 31, 2020. JG met with and retained Attorney Robert Lewin of Andover. Attorney Lewin explained to JG that you never want to be in criminal court – especially in Newburyport District Court, the toughest District Court in Essex County. Attorney Lewin explained to JG that the only people who “win” in Criminal Court are the lawyers because the lawyers get paid to be there. Attorney Lewin explained to JG that if JM refused to testify against JG then it was very likely the case against JG would go away and JG would not be charged. Likewise, Attorney Lewin explained that if JG refused to testify against JM the case against JM would likely go away. JG told Attorney Lewin that he did not want to be charged and he had no problem with the case against JM being dismissed.

Attorney Lewin called the lawyer that had been appointed to represent JM and proposed that both men refuse to testify against the other in their respective cases. The public defender agreed with Attorney Lewin’s suggestion. Attorney Lewin called the police prosecutor. The police prosecutor represents the police department at the Clerk-Magistrate Hearing. The prosecutor said that if JM had no interest in going forward with the case against JG then the police would not press the matter forward at the Clerk-Magistrate Hearing. Attorney Lewin told the public defender for JM to speak with the Assistant DA and to tell the DA that Attorney Lewin represented JG and that JG was not going to testify against JM.

January 19, 2020

BREAKING AND ENTERING AND LARCENY CHARGES DIVERTED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

On November 15, 2019 KA, a 21 year old Senior at Salem State, put his college enrollment and graduation at risk by breaking into a campus building and stealing a case of beverages from the school cafeteria. At 2:30 in the morning he and another student entered the building and were in the process of stealing the bottles of beverages when the campus police came upon the two students. KA and the other student ran. KA got away; the other student did not. The other student identified KA for the campus police as the other intruder.

The police applied for a criminal complaint against KA for breaking and entering and larceny; the application was set up for a hearing before a Clerk-Magistrate at Salem District Court. The hearing was scheduled for Friday, January 17, 2020. Three days before the hearing, KA and his mother consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately took control of the case. Attorney Lewin obtained and reviewed the police reports with KA. Attorney Lewin then reached out to the officer in charge of the case and the police prosecutor and advocated for the case to be diverted out of the criminal justice system. The Essex County DA’s Office runs a diversion program the principal benefit of which is to completely avoid criminal prosecution. Attorney Lewin then went over to Salem District Court and met with the head of the diversion program and advocated for the program to accept KA. The program director agreed that KA was a suitable candidate for the program.

On January 27, 2020 KA, his Mother, and Attorney Lewin appeared at Salem District Curt for the hearing before the Clerk-Magistrate. At the commencement of the hearing Attorney Lewin pointed out to the Clerk-Magistrate that Attorney Lewin had already spoken to the program director and that the program director felt that KA was a suitable candidate for the program. The police prosecutor told the Clerk-Magistrate that the police did not object to KA’s case being diverted. The Clerk-Magistrate agreed and said that she was referring the case to the Diversion Program.

January 12, 2020

Assault & Battery Charge Denied

by Robert D. Lewin

KP, a 65 year old man from California, was on a work assignment in Andover, MA. He got into a dispute with a fellow employee. According to KP the fellow employee attacked KP and the fellow employee ended up getting charged by the Andover police with Assault & Battery on a Person Over 60. The fellow employee turned around and filed an application for a criminal complaint against KP at Lawrence District Court alleging that KP had punched and strangled him and had hurled racial insults against the fellow employee. The Clerk-Magistrate’s Office at Lawrence District Court scheduled the application for a criminal complaint against KP for a hearing on January 9, 2020. KP was referred to Attorney Robert Lewin from North Andover. KP and Attorney Lewin had an initial conference over the phone that lasted about 1 1/2 hours. KP then retained Attorney Lewin. Attorney Lewin explained to KP that it would be prudent for Attorney Lewin to find out who was representing the fellow employee in the fellow employee’s criminal case. Attorney Lewin explained that both KP and the fellow employee have a Fifth Amendment right not to testify against one another and that if they both exercised their Fifth Amendment right it was very likely the Commonwealth could not proceed against of the the two men. KP had no interest in pursuing the criminal charge that the police had filed against the fellow employee and KP certainly did not want to have to defend against a charge of Assault & Battery himself. Attorney Lewin explained to KP that the only people who win when a case goes to court are the lawyers because the lawyers get paid.

Attorney Lewin reached out to the lawyer for the fellow employee and explained that KP would not come out from California to Massachusetts to testify against the fellow employee if the fellow employee agreed not to testify against KP at the Clerk-Magistrate hearing. The attorney for the fellow employee agreed.

On January 9, 2020 Attorney Lewin appeared at the office of the Clerk-Magistrate for the hearing on the application for the criminal complaint for Assault & Battery against KP. KP remained in California. No one else showed up. The fellow employee and his Attorney had agreed with Attorney Lewin that they would not appear. The Clerk-Magistrate called the case and when no one other than Attorney Lewin responded the Clerk-Magistrate denied the Application for a Criminal Complaint against KP. As a result KP was not charged with any criminal offense; KP did not have to come to Massachusetts; and NO criminal record was created against KP. Attorney Lewin left the hearing room at Lawrence District Court and called KP in California and told him that he had just won his case! KP was thrilled and gave Attorney Lewin a big “thank you” from California.

January 5, 2020

Another Hit and Run Case Won

by Robert D. Lewin

DE, a 35 year old woman from Lowell, was cited by the State Police for a Hit and Run on Route 495 in Andover. On November 6, 2019, after leaving a bar/restaurant in Andover, she headed onto Rt. 495 South from Route 28 in Andover. At the same time a tractor trailer unit was headed south on Rt. 495. The driver of the truck observed her. The State Police report states: “[The truck driver] stated that she lost control and turned sideways. He then stated she appeared to regain control and continued onto the highway crashing into the side of his vehicle as he was traveling in the first travel lane. [The truck driver] advised that he could see that the passengers mirror was hanging from the drivers side as the vehicle fled the scene.” DE was subsequently identified as the operator of her vehicle at the time of the hit and run and on November 11, 2019 DE was issued a citation by the State Police for Leaving the Scene of a Property damage accident.

DE knew Attorney Robert Lewin from North Andover as he had successfully defended her in 2013 against a charge of operating after suspension of her license. DE immediately contacted Attorney Lewin and retained him.

Attorney Lewin went over to Lawrence District Court and immediately filed a request for a Clerk-Magistrate Hearing. Attorney Lewin checked the papers in the Clerk-Magistrate’s Office to see if the State Police had filed their copy of the Citation along with an Application for Criminal Complaint for the Hit and Run against DE. Under a little known statute (although well known to Attorney Lewin) the police have six business days to file their copy of the citation along with their application for a criminal complaint in the Clerk-Magistrate’s Office of the Court. Failure to do so is a defense. Attorney Lewin discovered that the police had not filed their paperwork. Attorney Lewin kept checking with the Clerk-Magistrate and it was not until November 25, 2019 that the police finally filed their copy of the citation along with their Application for Criminal Complaint against DE. This was 9 business days (exclude Saturdays, Sundays, and Thanksgiving Day). DE’s case was set up for a Clerk-Magistrate Hearing.

November 7, 2019

Felony Charge of Assault & Battery on a Person Over 60 avoided at Clerk-Magistrate Hearing

by Robert D. Lewin

NT, a 28 year old woman with anger issues, got into an argument with her next door neighbor – a retired cop. The argument arose when the neighbor’s dogs came onto NT’s property. The neighbor came over to get the dogs and NT got in his face and began to yell at him. As the neighbor turned to leave NT yelled at him “You come back here”. According to the police report the neighbor stated “he turned back around and that was when NT spit up a loogie and spit it at the neighbor striking his chest”. (You can’t make this stuff up!)

The neighbor called the police and the police responded. The police talked to the neighbor and to NT’s father. The father told the police that NT had anger issues. The police then applied for a criminal complaint against NT for Assault and Battery on a Person Over 60 – a felony. NT has a good job and having a record for a felony charge could have very serious consequences for her employment. NT received a notice from Woburn District Court informing her that a Hearing before a Clerk-Magistrate had been set for November 6, 2019.

NT met with and retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately obtained copies of the police reports. Attorney Lewin then called the Police Prosecutor and sent an email to the police prosecutor detailing how detrimental it would be for NT to be charged with a felony. Attorney Lewin suggested to the Police Prosecutor that this would be a good case to resolve at the Clerk-Magistrate Hearing without a complaint being issued against NT. The prosecutor agreed with Attorney Lewin.

November 4, 2019

Possession of Cocaine Case DIVERTED OUT in Lawrence District Court. NO Criminal Record Created

by Robert D. Lewin

On January 18, 2019 at about 6:30 pm JN, a 32 year old HVAC Technician from Londonderry, NH came down to Lawrence with a friend to buy cocaine. Little did they know that they were being watched by the North Shore Gang Unit doing surveillance in Lawrence. After watching JN and his friend make a hand to hand purchase of drugs, the police pulled JN’s vehicle over. The two men were ordered out of JN’s vehicle and a pat down of JN yielded plastic twists of cocaine in JN’s pocket.

JN and his friend got lucky. The police did not arrest them, but rather told them that they would receive a notice to go to court. Six months later (!) in July 2019 JN received a Notice of Magistrate’s Hearing. The police had filed an application for a criminal complaint for Possession of Class B against JN. The case had a hearing date of August 1, 2019.

JN met with and then hired Attorney Robert Lewin from North Andover. JN and Attorney Lewin thoroughly discussed the case. There were many issues not the least of which was the legality of the stop of JN’s vehicle and the search of JN by the police.

November 2, 2019

Felony Assault with Dangerous Weapon dismissed at Clerk-Magistrate Hearing

by Robert D. Lewin

JJ, a 69 year old disabled Methuen resident, hates his next door neighbor. The neighbor parks his truck right at the property line between the two mens’ properties and this drives JJ nuts. On August 9, 2019 the neighbor was standing by his truck. JJ grabbed his cane (!) and hobbled outside of his house, down the walkway, to his fence. According to a Methuen Police Report JJ then started to approach his neighbor and yelled at the neighbor “You’re a fat fu–ing piece of sh–.” The police report then states that JJ continued to approach his neighbor and began swinging his cane and yelled “I want to smash your head in.” The neighbor called 911 and the police responded. The police spoke to JJ who denied swinging the cane. The police did not arrest JJ but filed an application for a criminal complaint for Assault with a Dangerous Weapon against JJ at Lawrence District Court.

JJ called Attorney Robert Lewin from North Andover. As it turns out Attorney Lewin had represented JJ in 2012 for a similar incident with the neighbor where the neighbor had applied for an abuse prevention order against JJ. At a full hearing in front of a Judge in Lawrence District Court that Abuse Prevention Order was denied. Attorney Lewin had also represented JJ in 2018 at a Clerk-Magistrate Hearing where the police had filed an application for a criminal complaint against JJ for threatening to kill the neighbor. Attorney Lewin was successful in getting that case dismissed. Attorney Lewin warned JJ that he had to get his temper under control and ignore the neighbor.

In any event on October 10, 2019 the Clerk-Magistrate Hearing was held at Lawrence District Court and after a full hearing at which the neighbor was present the Clerk-Magistrate denied the application for a criminal complaint against JJ.