Clerk-Magistrate Hearings

September 1, 2019

BREAKING AND ENTERING CHARGE DISMISSED AT CLERK-MAGISTRATE HEARING

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.

December 19, 2018

Fifth Hit & Run Win in the last Three Months

by Robert D. Lewin

On December 19, 2018 Attorney Robert Lewin from North Andover appeared in Newburyport District Court for a Clerk-Magistrate Hearing on an application for a criminal complaint that had been filed by the Rowley Police against KX, a 23 year old male laborer, who had left the scene of two accidents in the early morning hours of October 14, 2018. For the fifth time in the last three months Attorney Lewin was successful in getting a leaving the scene of property damage case dismissed. (Salem District Court on December 16, 2018, Lowell District Court on November 16, 2018, Newburyport District Court on September 7, 2018, and Lawrence District Court on September 20, 2018. All these other cases are reported elsewhere in this blog site.)

On October 14, 2018 KX was driving his pickup truck from a friend’s house in Amesbury to his apartment in Beverly. It was around 1:00 AM. As KX was travelling southerly on Rt. 1A in Rowley he entered a turn in the road but took the turn too widely. His truck traveled over the curb and smashed two large wooden planters and a mailbox set atop a concrete post. KX then went across the road dropping wooden debris from the back of his pick up all over the road. A car coming the other way ran over the debris and was damaged. KX decided not to stop and continued to his apartment. When he pulled into the parking area at his apartment he struck his landlord’s truck but did not report that either and went directly into his apartment. Unfortunately for KX he dropped his front bumper and license plate at the scene of the original accident. The Rowley Police were called to the scene of the original accident, found the license plate, ran the plate, and then had the Beverly Police go to KX’s apartment where they found KX’s truck and his landlord’s truck. KX spoke with the Beverly Police and admitted to them that he had been in the two accidents and had failed to stay at the scene. The next day the Rowley Police issued a citation to KX for two counts of Leaving the Scene of a Property Damage Accident. Each count carries a jail sentence of between 2 weeks and 2 years.

KX’s parents contacted, met with, and retained Attorney Robert Lewin from North Andover, MA. Attorney Lewin told them that it was imperative that KX take the citation and hand deliver it to the Newburyport District Court to request a Clerk-Magistrate Hearing immediately. KX did that. Attorney Lewin then reached out to the Rowley Police and spoke with them in an attempt to get them to agree to resolve the case at the Clerk-Magistrate hearing without a criminal complaint being issued against KX. Attorney Lewin also reached out to KX’s insurance company to get assurance from the insurance company that the insurance company would pay for the damages caused.

December 16, 2018

Another Hit and Run Case Win

by Robert D. Lewin

On Sunday, October 21, 2018 shortly after midnight, CL, a 31 year old male from Beverly, was driving to his home from his girlfriend’s house in Middleton. Suddenly a deer ran in front of his car and he swerved to avoid it. CL swerved across the roadway going across the opposite lane and ran off the road and struck a stone wall and mailbox on private property. CL exited his car, looked at the car and the wall, and walked away, leaving the car there. The police were called to the scene and traced the plate number to CL. The police put out a BOLO (Be On the Lookout) for CL but were unable to locate him. A trip to his home in Beverly came up empty.

The next day, Monday, October 21, 2018, CL walked into the Middleton Police Station and reported that he was in the accident. The officer thanked him (!) and then handed him a citation for Leaving the Scene of a Property Damage Accident, Negligent Operation, and a Marked Lanes Violation. In addition the police reported to the Registry of Motor vehicles that CL was an immediate threat. The Registry several days later suspended CL’s license as an immediate threat.

CL and his father consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin told CL to immediately go to Salem District Court and file the citations to request a “show cause” hearing before a Clerk-Magistrate. Attorney Lewin contacted CL’s insurance company to expedite payment of the landowner’s claims for damages to the wall and the mailbox. Attorney Lewin reached out and spoke with the police prosecutor from Middleton.

December 2, 2018

SHOPLIFTING CHARGE DISMISSED

by Robert D. Lewin

On September 8, 2018, NB, a 48 year old Lebanese woman from Lawrence, went into the Stop & Shop Supermarket in Methuen and put $157.24 worth of food into her shopping cart. She then proceeded to walk out the door of the store without paying for the food. NB was stopped by a store loss prevention officer and the Methuen Police were called. NB was charged with shoplifting. On November 1, 2018 NB appeared at Lawrence District Court for a Clerk-Magistrate Hearing. Until about one year ago these shoplifting cases in Lawrence District Court were routinely disposed of at a Clerk-Magistrate hearing without a criminal complaint being issued. Over the last year the Clerk-Magistrates have been issuing criminal complaints in shoplifting cases where the amount in question is over $100 or in cases where the evidence suggests that the accused has engaged in shoplifting before. The Clerk-Magistrate issued a complaint against NB and she had to return to Court for an Arraignment on November 29, 2018. NB retained Attorney Robert Lewin from North Andover. On November 29, 2018 NB appeared in Lawrence District Court and after a brief conference between her lawyer and the Assistant District Attorney the shoplifting charge was ordered dismissed. NB left the court very relieved.

It is important to understand that in Lawrence District Court the Clerk-Magistrates now look closely at the evidence in these shoplifting cases and will often issue a criminal complaint.

October 5, 2018

HIT AND RUN CHARGE AVOIDED

by Robert D. Lewin

On July 19, 2018, KL, a 28 year old male data analyst went out with his girlfriend to a restaurant/bar in Newburyport. They ate and had several drinks and then at about 10:30 PM they left the bar and got into KL’s car which was parked in the parking lot. As KL backed up, the rear end of his car came into contact with the rear bumper of another vehicle that was parked in the parking lot. According to the police report there was “minor damage” to the passenger side rear bumper of the parked vehicle. KL got out of his vehicle and walked over to the parked vehicle. There were several witnesses in the parking lot to the entire event. KL then got back into his vehicle and drove away. The police were called and responded. The witnesses told the police what had happened and furnished the registration plate number of KL’s vehicle to the police. From the plate number the police were able to ascertain the owner of the offending vehicle (KL). The police then went into the restaurant/bar and showed the bartender a photo of KL (which the police had obtained on their portable data terminal from the Registry of Motor Vehicles). The bartender immediately identified the picture of KL as a customer who had been in the bar with a woman. The bartender was able to get the credit card charge slip that KL had signed and it bore KL’s name.

The police attempted to speak with KL but were not successful. The police issued a citation for Leaving the Scene of a Property Damage collision. KL consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin instructed KL to immediately request a hearing before a Clerk-Magistrate at the Newburyport District Court which KL did. Attorney Lewin was able to obtain a copy of the Police Narrative Report. Attorney Lewin reached out to the police prosecutor to see if a resolution of the case could be reached at the Clerk-Magistrate hearing. On September 7, 2018 KL and Attorney Lewin appeared at the Newburyport District Court for the Clerk-Magistrate hearing. The owner of the struck vehicle was not present. The purpose of a Clerk-Magistrate hearing is for the Clerk to decide whether there is probable cause to issue the complaint. If the Clerk-Magistrate finds no probable cause then no complaint will be issued. If the Clerk-Magistrate finds probable cause then the Clerk-Magistrate may issue the complaint; or the Clerk-Magistrate may, in his or her discretion, continue the hearing for a period of time and at the end of that period of time if there are no reports of any further trouble with the law then the Clerk-Magistrate will dismiss the application for the criminal complaint and not issue the complaint.

At the hearing on September 7, 2018 the notion of an Accord & Satisfaction was discussed. There is a statute in Massachusetts that provides as follows: