Larceny/Stealing

September 30, 2015

FORGERY AND UTTERING CHARGES DROPPED

In February of 2012 DW walked into the Credit Union in Peabody where he had an account. DW had 2 US Postal Money Orders with him – or at least what appeared to be US Postal Money Orders. DW deposited the two money orders which totaled $1,980.00. Several days later DW withdrew the money from his account. Sometime later the Money Orders were determined to be fraudulent and the Credit Union went to debit DW’s account the $1,980 but his account had no funds in it. The Credit Union went to the police and a criminal complaint was taken out against DW in Peabody District Court for 2 counts of forgery and 2 counts of uttering a forged money order. All four charges are felonies and carry serious penalties. By the time the Court mailed out a criminal summons for DW to appear in Court he had moved and did not receive the summons. A warrant issued for DW’s arrest. Three years later in 2015 DW learned of the warrant and went to Peabody District Court and got the warrant cancelled. He was arraigned on the four charges and his case was continued for a pre-trial hearing to September 30, 2015. DW retained Attorney Robert Lewin of North Andover. (Attorney Lewin had successfully represented DW years earlier in a criminal motor vehicle matter in Malden District Court.)
Attorney Lewin immediately went over to the Peabody District Court and obtained a copy of the police report and the report from the Credit Union. It became clear to Attorney Lewin that there was no evidence or proof that DW knew that the two money orders were fraudulent. Knowledge is a necessary element of all the four charges against DW. The Commonwealth has to prove that DW knew the money orders were fraudulent. Moreover, there was absolutely no evidence or proof that DW forged or made the false money orders. Sure the Credit Union had him on video depositing the forged money orders but that is not proof that he forged them or that he knew they were forged. In any event Attorney Lewin went to the DA’s Office and told them DW was innocent, there was no proof that he forged the money orders and there was no proof that he knew they were forged. From a civil (non-criminal) law point of view DW owed the Credit Union the $1,980.00. But he was charged criminally. On September 30, 2015 DW and Attorney Lewin appeared in Peabody District Court. DW agreed to pay the Credit Union the $1,980.00 and the Commonwealth agreed to dismiss all the charges. DW walked out of the Court a happy man.

April 29, 2015

ANOTHER SHOPLIFTING CASE AVOIDED

by Robert D. Lewin

On March 12, 2015 FD, a 54 year old woman from Middleton went shopping at Whole Foods in Lynnfield. Instead of using a shopping cart FD used her pockets and pocket book. She filled up her pockets with packages of food and headed out the door. Unfortunately for FD she was being watched by a loss prevention officer (LPO). The LPO stopped FD just after she went out the door of the store. She was brought back to the security office and the Lynnfield Police were called in. The merchandise ($124.00 worth of food) was fully recovered. The store gave FD a No Trespass Order and the police told her she would be summonsed to court. FD retained Attorney Robert Lewin.

Attorney Lewin reached out to the Lynnfield Police and quickly negotiated a resolution of the case that would NOT involve FD being charged with any criminal offense. The case was set up for a Clerk-Magistrate Hearing at Peabody District Court. On April 29, 2015 FD and Attorney Lewin appeared at Peabody District Court for the hearing before the Clerk-Magistrate. The Clerk-Magistrate adopted Attorney Lewin’s request that a complaint NOT be issued against FD; the Clerk-Magistrate continued the hearing for four months and ordered that as long as FD stayed out of trouble then on the four month date she would not have to come to the court and the application for criminal complaint against her would be dismissed.

As a result of this disposition it is important to note the following:

November 9, 2014

LARCENY CHARGES DISMISSED PRIOR TO ARRAIGNMENT: CRIMINAL RECORD AVOIDED

by Robert D. Lewin

The problem with having a larceny (or even a shoplifting charge) on your record is that no one wants to hire a thief. Getting a job can be made difficult if you have a larceny conviction on your record. On August 30, 2014 H & W (a husband and wife in their early 30s from Salem, NH) got caught stealing 10 metal shopping carts from a large supermarket in North Andover. The facts of the case were unusual in the extreme. H worked for a retail store and was in charge of inventory. His job required him to off load merchandise from delivery trucks and distribute the merchandise throughout the retail store. The retail store did not have large carts and moving the merchandise became a huge chore. H got the idea that he would “borrow” ten shopping carts from the supermarket and use them to offload merchandise. On August 30, 2014 at 3:00 AM H and his Wife drove to the supermarket and each of them took five large shopping carts and began to push them on a half mile journey to the retail store where H worked. The journey took them up a long steep hill. Those carts get heavy. About half way up the hill they were exhausted and stopped for a breather. Along came the North Andover Police. The police made H & W turn around and push the shopping carts back to the supermarket. The police decided not to arrest H & W but told them they would be summonsed to court for an arraignment. In most criminal cases a “criminal record” is created when the arraignment is held. H & W received summonses to appear in Lawrence District Court for an arraignment to be held on November 5, 2014. H & W both wanted to avoid having a criminal record for larceny. H & W retained criminal Attorney Robert Lewin from North Andover. Attorney Lewin immediately contacted the District Attorney’s Office at Lawrence District Court. Attorney Lewin prepared a background statement for both H & W and then sat down with an Assistant District Attorney and advocated for the DA’s Office to agree to dismiss the charges BEFORE H & W were arraigned. Neither H nor W had a criminal record and this incident was incredibly stupid. This was not the kind of incident that warranted giving H & W a criminal record for a felony charge of Larceny. In a “rare” moment of reasonableness the DA’s Office agreed not only to dismiss the charges but to dismiss them prior to arraignment so that a criminal record would not be created. On November 5, 2014 H & W and Attorney Lewin appeared in Lawrence District Court. The case was called and Attorney Lewin informed the Judge of the agreement that had been reached. The Judge then ordered the case against H and the case against W dismissed prior to arraignment. As a result neither H nor W has a criminal record. It is as if the incident did not happen.

November 2, 2014

ASSAULT & BATTERY CHARGE – NO PROBABLE CAUSE

by Robert D. Lewin

On September 16, 2014, GN, a 57 year old man from Wilmington, was accused of assaulting a female neighbor. The neighbor’s 11 year old son had been playing ball in the street in front of GN’s house; the boy claimed that the ball went under the bushes directly in front of GN’s house and that before the boy could retrieve the ball GN came out of the house, picked the ball up, and put it in his pocket. The boy went home and told his mother. The mother came down to GN’s house and rang the bell. GN came to the door and the neighbor demanded that he return the ball. GN denied that he had the ball and said he did not know what she was talking about. The neighbor walked away from the door and as she walked down the driveway she grabbed GN’s granddaughter’s tricycle and shouted to GN you’ll get the trike back when I get the ball back.GN bolted from the front door and according to the neighbor grabbed the tricycle and then shoved her. The neighbor called the police and the police responded. GN denied shoving the neighbor; he admitted to grabbing the tricycle. The neighbor applied for a criminal complaint against GN and GN received a notice of a complaint hearing from Woburn District Court. GN retained Attorney Robert Lewin. Attorney Lewin immediately advised GN to apply for a criminal complaint against the neighbor for larceny (stealing the tricycle) in order to “level the playing field”. GN followed Attorney Lewin’s advice. The Clerk-Magistrate at Woburn District Court sent the neighbor a notice for a hearing against her for larceny. The two hearings were scheduled for the same time. In Massachusetts a person has a right to use reasonable, non-deadly, force to protect their property and to prevent it from being stolen. On October 24, 2019 the hearing took place. The Clerk-Magistrate heard both sides. Attorney Lewin had photos of the scene and had GN, his wife, and his daughter testify. Attorney Lewin had made a copy of the relevant law (that a person has right to use reasonable, non deadly, force to prevent their property from being stolen) for the Clerk-Magistrate. The Clerk-Magistrate found no probable cause to issue a criminal complaint against GN. GN walked out of Woburn Court having no criminal record and no criminal complaint to defend against.

September 19, 2014

SHOPLIFITNG CHARGE AVOIDED

by Robert D. Lewin

On August 27, 2014, EG, a 58 year old married mother of two children went into the Whole Foods Market in Andover. She filled her shopping cart with about $150.00 worth of food; unfortunately she filled her pocketbook with about $130.00 worth of vitamins. She went through the cash register and paid for the food but did not pay for the vitamins. As she exited the store she was stopped by a loss prevention officer. She was brought back into the store; the vitamins were removed from her pocketbook. The Andover Police were requested by the store and they responded. The Andover Police did not arrest EG but they took her information and told her she would be hearing from the Lawrence District Court. EG is a dental hygienist and she was concerned with the potential effects of having a criminal record. EG retained Attorney Robert Lewin from North Andover.

Attorney Lewin immediately contacted the Police Prosecutor from Andover and obtained a copy of the police report. In addition Attorney Lewin made sure that the case was being set up for a Hearing before a Clerk-Magistrate as opposed to a summons. When a person is accused of shoplifting and the amount in question exceeds $100 the police have two choices. They can file an application for criminal complaint at the Court and request that the Clerk-Magistrate set the application up for a hearing to determine whether or not a criminal complaint will be issued against the accused. The second choice the police have is to file the application for criminal complaint at the court and request that the Clerk-Magistrate issue the criminal complaint without a hearing and issue a summons for the accused to appear before a judge. This is a critical difference. When the application is set up for a hearing then the accused has the opportunity to “kill” the case before it goes any further. When the Clerk-Magistrate conducts a hearing, the Clerk-Magistrate has the discretion to NOT issue the criminal complaint against the accused. If the Clerk-Magistrate does NOT issue a criminal complaint then the accused does not have to go in front of a Judge and, more importantly, NO criminal record is created. There is no publicity of the charge.

On the other hand, if the Clerk-Magistrate decides to by-pass a Clerk-Magistrate Hearing and issues the complaint and a summons then the accused loses that opportunity to “kill” the case, the accused has to appear before a judge for an arraignment in open criminal court, and a CRIMINAL RECORD is created. That is why it is important to advocate with the police at the earliest possible moment to have the case set up for a hearing.

April 9, 2014

9 YEAR OLD WARRANT CANCELLED

by Robert D. Lewin

Back in 2005 PT, then age 31, kited checks at a local bank in Holyoke, MA and ended up owing the bank $1,100.00. Check kiting is illegal and when he refused to pay the bank the $1,100.00 a criminal complaint for Larceny by Check Over $250 was taken out against PT. PT defaulted in Court and took off for Texas. In 2014 PT went to renew his Texas License and was told he could not renew it because he had an outstanding warrant in Massachusetts. PT remembered virtually nothing about the case. PT contacted Attorney Robert Lewin. Attorney Lewin – that same day – contacted the Court and the Holyoke Police and was able to determine the facts of the case, the amount of money owing, that the investigating officer had retired from the police force and the investigator for the bank had also retired. PT retained Attorney Lewin. Attorney Lewin spoke the next day with the Assistant District Attorney at the court; the DA’s Office agreed that if PT paid the $1,100.00 forthwith then the DA’s Office would agree to dismiss the case – and PT would not have to come up to Massachusetts. Attorney Lewin called PT and gave him his options: (1) He could come up to Massachusetts and fight the case and probably win it of (2) he could pay the $1,100.00, not have to come to Massachusetts, and probably get the case dismissed. PT’s wife wired the $1,100.00 to Attorney Lewin the next day. On Tuesday, April 8, 2014 Attorney Lewin appeared in Holyoke District Court and presented a Motion to waive PT’s personal appearance in Court. The judge granted the Motion, Attorney Lewin paid the $1,100.00 to the Court, the default was removed, the warrant cancelled, and the case dismissed. The suspension of PT’s right to operate a motor vehicle imposed by the Massachusetts RMV because of the warrant in Holyoke District Court has been lifted and PT can now go to the Texas DMV and get his Texas license renewed. From the date PT hired Attorney Lewin to the date the warrant got cancelled and the case was dismissed consumed 7 business days. Like many people who have outstanding warrants PT was afraid to deal with it and thought it would never rear its head. Neither PT nor his wife could believe that the case got so favorably resolved, so quickly, without PT having to come to Massachusetts.

February 9, 2012

GRAND LARCENY THIEF GETS BREAK

by Robert D. Lewin

TK, a 66 year old retired man from Boxford, was caught stealing dinnerware from Building 16 in Haverhill. He was charged with Larceny Over $250, a felony in Massachusetts. A review of the facts indicated that TK had lost his employment as a result of the recession. TK retained Attorney Robert Lewin. Attorney Lewin met with the Assistant District Attorney in Haverhill District Court and convinced the Assistant DA that TK was worthy of a break. On February 8, 2012 Attorney Lewin and TK appeared in Haverhill Court and by agreement TK’s case was continued for six months without a finding. The judge waived the probation supervision fee and so long as TK stays out of trouble the case will be dismissed at the end of the six months. Under the new Massachusetts Criminal Records Law, TK will be eligible to request that his record be sealed at the end of the six months.

January 26, 2012

CLEARING OLD WARRANTS

by Robert D. Lewin

MC is now age 48 and resides in Vermont. From 1992 to 2000 he lived in Massachusetts and had a string of criminal offenses that brought him into New Bedford District Court, Hingham District Court, Barnstable District Court, and Wareham District Court. His crimes included the following: Larceny By Check (4 counts), Counterfeiting a Motor Vehicle Document (Title), Larceny Over $250 (2 counts), DUI Liquor, Operating to Endanger, and Operating After Suspension of License. In 2000 he left Massachusetts and settled down in Vermont. He started a business and became quite successful. Then he got a notice from the DMV in Vermont that Vermont would not renew his license because of outstanding warrants in four Massachusetts Courts. MC retained Attorney Robert Lewin who immediately went to all four courts. Copies of all the papers from all his cases in all four courts were obtained. The DA’s Offices in all four courts were contacted as well as the probation offices in all four courts. The cases in Barnstable District Court and Hingham District Court required only the payment of money and the obtaining of certain papers. MC paid the moneys that were owing and furnished the necessary papers and the cases in Barnstable District Court and Hingham District Court were resolved by Attorney Lewin without MC having to appear in Court. The warrants in both courts were cancelled and the cases in those two courts were closed. The cases in New Bedford District Court and Wareham District Court posed additional problems for MC. Incredibly all the witnesses in the cases in those two courts were still around and were anxious to testify against MC. MC had screwed several companies out of substantial sums of money and they wanted their money back or a piece of MC’s hyde. The DA’s Offices in both courts were prepared and willing to try the cases. Lengthy negotiations went on about paying the money back and on January 26, 2012 MC and Attorney Lewin appeared in Wareham District Court (at 9:00 AM) and in New Bedford District Court at 11:00 AM. In Wareham District Court MC made a payment of $6,000 in restitution and the Larceny Charges against him were outright dismissed and the warrants were cancelled. MC and Attorney Lewin then drove to New Bedford. In New Bedford District Court MC made a payment of $7,000 in restitution. The $7,000 was one-half of the money that he owed. By agreement with the DA’s Office the warrant against MC was cancelled and the case was continued for three months to pay the remaining $7,000 in restitution. The DAs Office has agreed to dismiss the charges against MC outright on the three month date if the $7,000 balance of the restitution is paid by that date. As a result, MC has walked away from a combination of several felony and misdemeanor charges in 4 courts after having been on default (i.e. on the run) for 12 years. He did not spend a day in jail. All his warrants have been cancelled and his driving privileges have been reinstated. MC was so pleased he gave Attorney Lewin a bonus!

April 5, 2011

Framingham District Court Warrant Cleared

by Robert D. Lewin

In 2009, DW, a 58 year old car parts salesman, gave a fellow a check for $1,500 that was worthless. The fellow went to the police and the police took out a criminal complaint against DB for Larceny Over $250, Forgery, and Uttering (all felonies). DB left Massachusetts and moved to Virginia and never received the summons to appear in Framingham District Court. A warrant issued for his arrest. Two years later (in 2011) DW learned of the outstanding warrant and contacted Attorney Robert Lewin. Attorney Lewin spoke to the victim and confirmed that DB made good on the bad check plus interest. Attorney Lewin then contacted the police and the District Attorney’s Office and got the DA’s Office to agree to dismiss all the charges against DB prior to arraignment and without DB having to appear in Court. On April 5, 2011 Attorney Lewin appeared in Framingham District Court on DB’s behalf and the Judge went along and dismissed all the charges prior to arraignment without DB appearing personally. By dismissing the charges prior to arraignment the charges do not go on DB’s criminal record. It is as is it never happened.

September 2, 2010

THIEF GETS BREAK IN LOWELL DISTRICT COURT

by Robert D. Lewin

RC worked for an employer. RC stole his employer’s checkbook and removed 15 blank checks from the checkbook. Over a period of several weeks RC wrote out the 15 checks to himself, forged his employer’s signature, and cashed the checks at a local bank. RC received about $11,500 from this scheme. Shortly after the employer discovered the missing checks the police were called in. It took about 10 minutes for the investigation to focus on RC. RC was called into the police station without a lawyer where he made a complete confession after being Mirandized. RC was charged with 45 felony counts: 15 counts of forgery, 15 counts of larceny, and 15 counts of uttering. (Uttering is the act of knowingly tendering a forged check; this happened each time RC took one of the forged checks and cashed it at the bank.) RC’s employer was angry and wanted RC to go to jail. Attorney Lewin got RC into counselling and stressed to RC the importance of putting money aside each week so that when RC went back to court he would have a sum of money to be applied toward the restitution. On August 26, 2010 RC and Attorney Lewin appeared in Lowell District Court. The District Attorney asked that RC be given an 18 month split sentence: 6 months to be served and 12 months suspended for 3 years with probation and restitution. Attorney Lewin presented the Judge with a report from the counsellor and $500 in cash that RC had accumulated as a downpayment on the restitution. Attorney Lewin pointed out that sending RC to jail – even if only for a very short period – would cost RC his new job and would greatly hamper his ability to pay the retitution. Attorney Lewin requested a term of probation. The Judge followed the recommendation of Attorney Lewin and placed RC on Probation for three years (with an 18 month suspended sentence) and the Judge ordered restitution to be paid at the rate of $100 per week. RC believes he will be able to get the retitution paid off in 2 years; if that happens then a Motion to Terminate Probation early will be filed and presented to the court. Wins come in all shapes and sizes. RC did not want to go to jail and he wanted sufficient time to pay the restitution. RC got the result he wanted. As RC and Attorney Lewin were leaving the Courthouse RC turned to Attorney Lewin and said put this case in the win column!