Clerk-Magistrate Hearings

November 7, 2019

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

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.

October 4, 2019

OUI DRUGS & RECKLESS OPERATION CHARGES DISMISSED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

On August 31, 2019, UN, a 21 year old college student was driving his car in Beverly, MA when he veered off the road and struck a tree head on. The police responded to the scene (along with a group of neighbors). UN was behind the wheel and appeared to be drifting in and out of consciousness. His pupils were extremely dilated. In the car the police found an open container of beer along with what appeared to be a “drug pipe” (as described in the police report). Two doses of Narcan were administered to UN and he responded. He was brought to Beverly Hospital. The police cited UN for OUI Drugs and Reckless Operation. In addition, the Police also served UN with a Notice of Immediate Threat. A notice of Immediate Threat is a notice that the police send to the Registry of Motor Vehicles to request the RMV to suspend a person’s license because the person (for either a medical reason or some other reason) poses a threat to the public if they operate a motor vehicle.

UN insisted that he had not consumed any drugs or any alcohol. UN (and his family) sought out a lawyer. UN and his Mother had an initial free consultation with Attorney Robert Lewin from North Andover. The consult ran over two hours. UN and his family hired Attorney Lewin.

Attorney Lewin told UN that the Hospital Report would be critical to defending this case – and it was. Attorney Lewin directed UN to go to the hospital and obtain a copy of the complete hospital report – including most importantly all the blood test results and all the urine test results. Sure enough, the test results showed NO alcohol and NO controlled substances -in particular NO opiates. The case became a slam dunk at that point.

September 1, 2019

BREAKING AND ENTERING CHARGE DISMISSED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

In 2018 DE graduated from Phillips Academy in Andover. On June 1, 2019 he decided to return to Andover to celebrate his first reunion with classmates and friends. Of course, there was a young lady who was due to graduated on June 2, 2019 and DE and she had been in a romantic relationship. She wanted to see him badly; in fact she wanted him to stay the night with her in her dorm room. She called him and texted him imploring him to come be with her. He did not want to and told her that he was with a number of friends. She persisted and finally he agreed. Her dorm was a locked dormitory. She opened the locked outer building door and left it wedged open so that he would be able to get in. He came to the wedged open door and entered the building and went up to her room. Subsequently another dorm resident reported that there was a male in the building and the dorm director went to the girl’s room. DE was discovered hiding in the closet. The girl, fearing that she would not be allowed to graduate the next day, told the dorm director that he had been calling her insisting that she let him in; that she had told him not to come to the dorm or her room; that he came anyway and that he burst into her room; that she told him to leave and that he refused. The school notified the police and the police charged DE with Breaking and Entering a building in the nighttime with the intent to cause a misdemeanor. The case was set up for a hearing before a Clerk-Magistrate at Lawrence District Court.

DE and his family live in New York and they were told to call Attorney Robert Lewin from North Andover. DE and his father had an initial free consultation with Attorney Lewin on the phone that lasted about 1 1/2 hours. DE’s father immediately retained Attorney Lewin. Attorney Lewin had DE send to Attorney Lewin all the text messages that DE had exchanged with the girl. The text messages were terrific evidence that the girl had lied when she reported that he arrived uninvited. Not only did she explicitly insist that he stay overnight with her she asked him to “bring alcohol” (which he did not do).

On July 18, 2019 DE, his father, and Attorney Lewin appeared in Lawrence District Court for the Clerk-Magistrate Hearing. These Clerk-Magistrate Hearings are important because it is an opportunity to kill a criminal case BEFORE it goes before a judge and BEFORE it goes on your criminal record. At the hearing the police prosecutor read the police report. Attorney Lewin then produced the text messages and read them message by message. When Attorney Lewin was done the Clerk-Magistrate looked at the Police Prosecutor and said “where is the crime?” The young man was invited in and he had no intent to commit a crime when he entered the building. The Clerk-Magistrate denied the police application for a criminal complaint.

June 4, 2019

SEXUAL CONDUCT FOR FEE CASE TO BE DISMISSED

by Robert D. Lewin

XM, is a 46 year old project manager for a large contractor. XM resides in a community north of Boston and in March of 2019 ran an ad on Craig’s List soliciting sex (a hand job) for a fee ($40). The ad was picked up by the local police department and they set up a sting. An officer replied to the ad via email. An exchange of emails between the undercover cop and XM was recorded and a meet was set up. The price and the sexual conduct was agreed to in the emails. XM arrived at the agreed upon location at the agreed upon time. XM then sent an email describing his truck. The police arrived and XM was asked to come to the station which he agreed to do. At the station XM confessed. XM was not arrested but was told to expect paperwork from the Woburn District Court. XM consulted with and retained Attorney Robert Lewin of North Andover. Attorney Lewin explained that it would be important to speak with the police prosecutor right away to see if a Clerk-Magistrate Hearing could be set up, before an actual criminal complaint was issued by the Court. Attorney Lewin spoke with the police prosecutor and explained XM’s situation. XM and his wife had just had a baby and his wife was suffering from post partum depression and it had been several months since they had had sex. He was just seeking a release and was willing to pay for it. Attorney Lewin advocated with the police to reach a resolution of the case at a Clerk-Magistrate hearing so that XM would not be charged. The police agreed to Attorney Lewin’s request.

On June 4, 2019 XM and Attorney Lewin appeared in Woburn District Court for a Clerk-Magistrate Hearing. The police report was read to the Clerk-Magistrate. The Clerk-Magistrate found that there was probable cause to issue the criminal complaint against XM and send the case to court. The Clerk-Magistrate asked Attorney Lewin about XM. Attorney Lewin gave a comprehensive background statement to the Clerk-Magistrate and asked the Clerk-Magistrate not to issue the criminal complaint. The Clerk-Magistrate agreed. The Clerk-Magistrate continued the hearing for six months and ordered that if XM stayed out of trouble with the law then on December 4, 2019 neither XM nor Attorney Lewin would have to return to court and the application for criminal complaint would be DISMISSED.

As a result of this disposition Attorney Lewin pointed out the following to XM

April 20, 2019

ROAD RAGE CHARGE AVOIDED

by Robert D. Lewin

On December 30, 2018, MQ, a 51 year old woman from Billerica, drove to the Burlington Mall. She entered the parking lot and searched for a space. She spotted a space in an aisle and headed toward the space. As she approached the space a woman (whom we shall call W) driving an SUV coming from the opposite direction pulled into the space directly passing by the front of MQ’s car. According to a Burlington Police Department Report, W told police that MQ stopped her vehicle and began screaming at W “F–k you, I was waiting for that space.” According to the police report W said that MQ continued screaming. As W (and her teenage daughter) began to walk toward the mall entrance W wrote down the plate number of MQ’s vehicle. W also noticed MQ walking around W’s car. W entered the mall and did her shopping. When she came back out and went to her car there was a long scratch that went around the car (the whole passenger side, the front hood, and the whole driver side). W immediately called the police. The Burlington Police responded. From the license plate they learned that the owner of the car was MQ and they called MQ. According to the police report MQ denied scratching the car, but then began “yelling into the phone “I was walking around the car because I was thinking about keying it but I never did.”

The police filed an application for criminal complaint against MQ for malicious damage to a motor vehicle. A conviction of this offense carries a one year loss of your driver license.

MQ sought out an attorney. She met with and retained Attorney Robert Lewin from North Andover. Attorney Lewin explained the law in detail to MQ and cautioned her that a conviction would carry a one-year loss of her driver’s license. MQ lived in Billerica and worked in Cambridge and absolutely needed a license to get back and forth to work.

April 17, 2019

Juvenile Threat to Shoot In School Charge Diverted

by Robert D. Lewin

On March 26, 2019, KF, a 14 year old 8th grade student in an Essex County town, was with several friends in the school cafeteria at lunch time. Words were exchanged and KF said to one of the girls at the table “If you tell, I’ll bring a gun to school and shoot you all in the head”. One of the students at the table told their parent who in turned notified the school authorities who in turn notified the police. The police went to the school and spoke with KF and KF’s mother. The police also went to KF’s house and with the consent of KF’s Mother searched the house. KF’s mother’s boyfriend kept a gun at the house. Fortunately the gun was fully secured with a trigger lock and a barrel lock and the gun was locked in a gun safe. KF’s mother’s boyfriend had a valid license to carry. In KF’s bedroom the police found 4 knives. DCF (the Massachusetts Department of Children and Families) was notified. The school suspended KF. The police went to the Juvenile Court and applied for a Juvenile complaint against KF for Threatening to Use a Firearm in a school – a 20 year felony.

KF’s mother contacted Attorney Robert Lewin from North Andover. KF and her mother met with Attorney Lewin for a free 2 hour long initial consultation. The case was a serious case and demanded that it be handled with care. On April 5, 2019 KF’s mother retained Attorney Lewin. Attorney Lewin immediately went to work on the case. The Juvenile Court had scheduled a “show cause hearing” before the Clerk-Magistrate of the Court for April 16, 2019. The purpose of the “show cause hearing” was for the Clerk-Magistrate to decide whether KF would actually be charged. These “show cause hearings” are real important as they are an opportunity to prevent the accused person from actually being charged. Success at a “show cause hearing” means that the accused does not get charged, does not have to appear before a judge, and – most importantly – does NOT get a record. Attorney Lewin had 11 days to get the case ready for the hearing.

Attorney Lewin immediately went to the Court and obtained the police reports and all the other important case papers from the Clerk-Magistrate’s Office. Attorney Lewin then went to the District Attorney’s Office and met with the Coordinator of the Essex County Juvenile Diversion Program. After a lengthy discussion with the people from the Diversion Program, the District Attorney’s Office agreed that KF would be a suitable person for diversion. Attorney Lewin then spoke with the Police Prosecutor and he also agreed that KF would be a suitable candidate for diversion. On April 16, 2019 KF, KF’s Mother, Attorney Lewin, and one of the girls who had been at the table when the incident occurred (who was prepared to testify that they knew that KF was kidding when she made the statement about the gun) all appeared at the Juvenile Court for the show cause hearing.

April 3, 2019

2 Hit & Run Cases in 6 days Dismissed

by Robert D. Lewin

On March 29, 2019 MM, a 54 year old technician from Wilmington, appeared in Lowell District Court with Attorney Robert Lewin from North Andover, for a Clerk-Magistrate’s Hearing on a charge of Leaving the Scene of a Property Damage Accident. After a full hearing the Clerk-Magistrate dismissed the application for criminal complaint and no criminal complaint was issued against MM.

On April 3, 2019 DL, a 38 year old waitress from Gloucester, appeared in Gloucester District Court with Attorney Robert Lewin from North Andover, for a Clerk-Magistrate Hearing on a charge of Leaving the Scene of a Property Damage Accident. After a full hearing the Clerk-Magistrate continued the hearing for six months and ordered that the application for criminal complaint would be dismissed at the end of the six months provided DL stayed out of trouble. The Clerk also ordered that DL would not have to return to court on the six month date.

As a result of these dispositions it should be noted:

February 15, 2019

Assault & Battery Charge Dismissed at Clerk-Magistrate Hearing in Haverhill District Court

by Robert D. Lewin

For many years a feud had simmered between two brothers. The older brother is age 60 and the younger brother is age 38. On Saturday, January 26, 2019 the younger brother was helping another brother (this is a very large family) move out of a three family house owned by the older brother in Haverhill. The older brother had ordered the younger brother not to come onto the property. The younger brother ignored the order and was in the house helping the other brother move. During the moving process the hardwood floors got scratched, a wall got dented, and an exterior door frame got damaged. The older brother confronted the younger brother and the two brothers got face to face in the presence of about 4 witnesses. The younger brother reported to the Haverhill Police that the older brother then punched the younger brother in the face twice before the two men were separated by the witnesses who were present. According to the police reports the younger brother had visible cuts on his face from the punches.

The Haverhill Police filed an application for a criminal complaint for Assault & Battery against EJ, the older brother. EJ has a job working in a public school system and an assault & battery charge could have drastic consequences for his continued employment and his pension. EJ sought out an attorney. EJ contacted and met with Attorney Robert Lewin from North Andover. Attorney Lewin also met with EJ’s wife; she was present when this happened. Attorney Lewin fully prepared EJ and his wife for the Clerk-Magistrate Hearing.

On February 13, 2019 EJ and his wife and Attorney Lewin appeared in Haverhill District Court for the Clerk-Magistrate Hearing. The police prosecutor read the police report to the Clerk-Magistrate. The report clearly stated that EJ punched his brother twice in the face in the presence of four witnesses causing cuts to the face. The legal test for a Clerk-Magistrate is probable cause; if the Clerk-Magistrate determines that there is some credible evidence that the crime occurred then the Clerk-Magistrate may issue the criminal complaint. The Clerk-Magistrate does not determine if the accused is guilty or not guilty, but merely is there some credible evidence that the crime occurred. It is a very low threshold. EJ and his wife testified that EJ had not punched his brother. In addition Attorney Lewin presented photos at the hearing of the damage that the younger brother had caused to the property. Attorney Lewin also presented photos of EJ; the photos showed bruises on EJ where he had been grabbed by his younger brother.