Massachusetts Criminal Lawyer Blog

September 14, 2017

Abuse Prevention Order and Harassment Prevention Order Defeated

JO, a stunning 30 year old female Argentinian national living in Florida, began a relationship with a man in the summer of 2014. They met through a mutual friend on Facebook. The relationship had its ups and downs. It was on and then off and then on again. This continued for over two years. His use of drugs was a constant problem in the relationship. Finally in October of 2016 they broke up (but every now and then thereafter they get together for sex). I guess you could call them ex-lovers with benefits. In any event, after the breakup a long pattern of alleged harassment begins. The ex-boyfriend and his new girlfriend allege that JO has made numerous false, defamatory, and inflammatory postings on Facebook (including the posting of pictures of the new girlfriend’s minor daughter). In addition they allege that JO has made repeated telephone calls to them at all hours of the night. Finally, the ex-boyfriend and his new girlfriend (both of whom are now living in Lynn, MA) go to Lynn District Court and apply for orders against JO. The ex-boyfriend seeks an Abuse Prevention Order and the new girlfriend seeks an Harassment Prevention Order against JO. From Florida JO finds and hires Attorney Robert Lewin from North Andover to represent her in Lynn Court. Attorney Lewin explained to JO that in order to maximize her chances of winning the two restraining order cases that JO would have to come to Massachusetts for the Court hearing. JO – via email – sent to Attorney Lewin a great deal of emails between JO and the ex-boyfriend that show that he is lying. In addition JO furnished to Attorney Lewin all her phone records to show that she did not make the calls that they were referring to. In addition Attorney Lewin was able to get the ex-boyfriend’s phone records which records cast doubt on his claims.

Attorney Lewin thoroughly prepared JO for the hearing and for testifying in front of the Judge. Attorney Lewin explained to JO that there is one Judge in Lynn District Court who does most of the Restraining Order cases and she has a very very short fuse. When this Judge asks a question she wants a specific answer to the question – not a speech. If you give her a speech this Judge will shut you down.

On August 23, 2017, JO and Attorney Lewin appeared in Lynn District Court. The ex-boyfriend and his new girlfriend were present as well. When the ex-boyfriend and his new girlfriend began to make speeches in front of the Judge, the Judge cut them off and sternly warned them to answer her questions directly – not with speeches.

September 14, 2017

10 Year Old Warrant Cleared and Case Dismissed

by Robert D. Lewin

On June 6, 2007, BQ, a then 29 year old office worker from New Hampshire with an opioid problem was arrested and charged with trespassing in the parking lot of a fast food restaurant in Lawrence. BQ had gone there to buy drugs. She was bailed out that day and never went to court. A warrant for her arrest was issued. For ten years BQ remained under the radar. In 2016 BQ – having been clean for for a considerable time – had a baby and needed to get a license. Because of the outstanding warrant in Lawrence District Court her right to drive in Massachusetts was suspended and as a result she could not renew her New Hampshire license which was now expired. BQ contacted Attorney Robert Lewin from North Andover. On August 30, 2017 BQ hired Attorney Lewin and on the same day Attorney Lewin and BQ went over to Lawrence District Court. Attorney Lewin had previously gone over to the Lawrence District Court and obtained copies of all the papers (the criminal complaint, the court docket sheet, and the police report) and forwarded them to BQ. In addition Attorney Lewin had previously met with the Assistant District Attorney and discussed a resolution of the case. After some discussion the Assistant DA agreed to Attorney Lewin’s request to dismiss the case. On August 30, 2017 Attorney Lewin and BQ went to the court and appeared before the Judge. The Judge ordered the warrant recalled (canceled) and the Judge ordered the case dismissed prior to arraignment. By ordering the case dismissed prior to her being arraigned the Judge prevented BQ from getting a criminal record as a result of this case. BQ left the courthouse very happy.

As a result of this disposition the following happened:

The warrant was cleared (on the very first date in Court).

September 14, 2017

Possession of Heroin Charge Avoided

by Robert D. Lewin

On April 18, 2017 BI, a 28 year old waitress from North Andover with an addiction to opiates, got pulled over by members of the Essex County Drug Task Force, after she was observed making a hand to hand buy of drugs from a dealer who was under surveillance. In addition to working as a waitress BI is also a full time student at a local college with a financial aid package. The police did not arrest BI, but told her that she would receive a notice from Lawrence District Court. The notice came and informed BI that an application for a criminal complaint for Possession of Heroin had been filed against her by the State Police and that a hearing would be held at the Court before a Clerk-Magistrate on September 7, 2017. The purpose of the Clerk-Magistrate Hearing is for the Clerk to determine if there is probable cause to issue a criminal complaint. In BI’s case there was plenty of probable cause. The police had observed a hand to hand sale and she produced the two bags of heroin when stopped by the police.

BI consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin encouraged BI to get into drug treatment/counseling which she did. Attorney Lewin explained the purpose of the hearing to BI and he told BI that he would ask the Clerk-Magistrate not to issue a criminal complaint against BI, but rather to continue the hearing for an appropriate period of time and if she remained clean and out of trouble to then dismiss the application for the criminal complaint. Attorney Lewin explained to BI that his request was a real reach, but the worst the Clerk-Magistrate could say is no.

On September 7, 2017 BI and Attorney Lewin (and BI’s Mother) appeared at Lawrence District Court for the hearing. The Clerk-Magistrate heard the facts of the case from the police prosecutor. Attorney Lewin then explained that BI was addicted to opiates, but that she was in a program of counseling and she was in a vivitrol smart recovery program. Attorney Lewin informed the Clerk-Magistrate that BI both worked and went to college and was on financial aid. A conviction (or even the issuance of a complaint for possession of heroin) could get BI expelled from school and she could lose her financial aid. Because of the rise in opiate deaths (and because BI had a prior arrest for Distribution of Heroin) the Clerk-Magistrate was reluctant to not issue a complaint. Finally, the Clerk-Magistrate addressed BI and said “I am going to take a chance on you and I hope I am not making a deadly mistake”. The Clerk-Magistrate then continued the hearing until December 29, 2017 and told BI that if she stays out of trouble between now and that date then on December 29, 2017 the application for a criminal complaint will be dismissed and she will not be charged, she will not have to go in front of a judge, and no criminal record will be created as a result of this case.

September 14, 2017

Traffic Ticket Win

by Robert D. Lewin

On April 7, 2017 CN, a 59 year old engineer, was driving to work when she got pulled over by a Bedford (MA) police officer and was given a civil motor vehicle citation for failure to slow at an intersection. CN has a lengthy motor vehicle record and was at risk of losing her license and of getting hit with additional insurance surcharges. CN retained attorney Robert Lewin from North Andover. Attorney Lewin had CN go to the intersection in question and take a series of pictures. The pictures were helpful in showing that CN had an unobstructed view of the traffic on the intersecting way. Attorney Lewin prepared CN for the hearing and gave her the do’s and dont’s of testifying before the clerk-magistrate. On July 12, 2017 Attorney Lewin and CN appeared in Concord District Court for the hearing before the Clerk-Magistrate. CN testified and Attorney Lewin presented the photos. The Clerk-Magistrate found CN NOT responsible. CN left the courthouse with a smile on her face.

September 13, 2017

Lewd, Wanton and Lascivious Person Charge Avoided

by Robert D. Lewin

ED, a 37 year old counselor from Manchester, NH had a problem. He would go to the shopping malls to the food court and sit in the food court among many other patrons (and children) and put his hands down his pants and masturbate. ED was observed in the North Shore Mall in Peabody on June 24, 2016. On that day a female patron and her young daughter were in the food court sitting at a table across from ED and observed that his hand was down his pants and he appeared to be masturbating. The woman got up and reported her observations to mall security. ED left the mall on that June date before mall security could confront him. The woman gave a detailed description of ED.

On July 1, 2016 (7 days after the June 24 incident) ED was again at the North Shore Mall in the food court. Based on the description that had been furnished by the witness on June 24, 2016 mall security observed ED in the mall and felt he may be the person that the witness described in the June 24 incident. Mall security began to observe ED. The security guard in his report wrote that ED sat at a table in the food court; that ED then put his left hand down the front of his pants and his hand was moving up and down in the area of ED’s genitals. The security guard continued that at one point ED’s eyes closed and ED’s legs were shaking. The security team then approached ED and confronted him. He said his hand was in his pocket.

ED was very lucky. The police could have arrested him; the police chose not to arrest ED but rather told him he would receive a notice from the Peabody District Court. The Police filed an application for a criminal complaint to be issued against ED for Lewd, Wanton and Lascivious Conduct. The application was set up for a Clerk-Magistrate Hearing on September 27, 2016. The purpose of the hearing is for the Clerk-Magistrate to determine whether there is probable cause to issue a criminal complaint. There was plenty of probable cause in ED’s case.

September 13, 2017

Fraudulent Motor Vehicle Insurance Claim Charge Dismissed

by Robert D. Lewin

EQ, a 43 year old woman from Methuen owned a car that was insured. The car needed some front end work and in February of 2017 EQ reported to her insurance company that her car had been struck by a hit and run driver. The insurance company sent an adjuster out to look at the car. The damage to the car did not appear to the adjuster to be consistent with the story being told by EQ. The insurance company hired an accident reconstruction expert who thoroughly examined the car including examining the paint on the car. The expert concluded that the front end of the car had been involved in a number scrapes on different times with different objects and that the front end work that needed to be done was unrelated to any accident. The insurance company reported their findings to the Massachusetts Insurance Fraud Bureau. The Methuen Police were called in and when confronted, EQ admitted that the accident did not happen as she reported it. The police then charged EQ with (1) Filing a False Motor Vehicle Insurance Claim and (2) Attempted Larceny Over $250.00. Both charges are felonies. EQ was arraigned on August 9, 2017 in Lawrence District Court and her case was continued for a pre-trial hearing to September 8, 2017.

EQ consulted with Attorney Robert Lewin from North Andover and retained him. The Insurance Fraud Bureau report was comprehensive and contained detailed photographs of the car and a detailed explanation of why EQ’s accident report was false.

EQ had no criminal record and a good job with a high-tech company. A felony conviction would dramatically effect her future. Attorney Lewin went over to the District Attorney’s Office at Lawrence District Court and met with the Assistant DA assigned to EQ’s case. The DA was willing to continue her case without a finding (CWOF). A continuance without a finding can be a good result as it avoids a conviction; but it does involve an admission that the evidence is sufficient to warrant a finding of guilt. Attorney Lewin advocated strenuously with the Assistant DA to consider a general continuance of the case. A general continuance of a criminal case is a disposition where, by agreement, the case is continued for a period of time and then dismissed. There is NO admission of guilt or wrongdoing. It is NOT a plea bargain.

July 17, 2017

Operating After Suspension for DUI: Mandatory Sentence and Mandatory Loss of License Avoided

by Robert D. Lewin

On April 27, 2017 TL, a 40 year old immigrant from Laos who is now a citizen, admitted to sufficient facts to an OUI first offense in Lowell District Court. The Judge continued the case without a finding and placed TL on probation for one year and suspended his license for 45 days. TL was eligible to get a hardship license but did not. On May 10, 2017, during the 45 day license suspension period, TL was driving to work when he got pulled over by the police in Ayer. The police arrested TL and charged him with operating after suspension of his license where the suspension was for an OUI case. A conviction under this law carries (1) a maximum sentence of 2 1/2 years and a mandatory minimum sentence of 60 days in the House of Correction and (2) an additional one year loss of license. TL was brought to Ayer District Court where he was arraigned and held and then transported to Lowell District Court where he was served with a notice of probation surrender and detention. In Lowell District Court, TL faced his continuance without a finding being revoked, a guilty finding being entered, and a sentence of up to 2 1/2 years being imposed along with a one year loss of license. Prospects looked very grim for TL. TL – in jail – asked his wife to find him a lawyer.

TL’s wife consulted with and retained Attorney Robert Lewin from North Andover. It was apparent to Attorney Lewin that none of TL’s problems would have arisen had he simply applied for the hardship license. Attorney Lewin went to the jail and met at length with TL. It appeared as if TL’s lawyer in the original case in Lowell had not advised TL about getting a hardship license so he could lawfully drive during the 45 day period.

Attorney Lewin went to Lowell District Court and met with TL’s Probation Officer. Attorney Lewin explained the situation to her and she responded very favorably to Attorney Lewin’s request to simply reprobate TL.On June 6, 2017 TL and Attorney Lewin appeared in Lowell District Court before Judge Fortes – a very tough District Court Judge. The probation officer came into the Courtroom and agreed with Attorney Lewin’s request that although TL violated probation that the Judge should simply put him back on probation (with the continuance without a finding still in place with no changes in the probation and no additional loss of license). The Judge adopted the request and the probation violation went away with no negative effects for TL.

June 26, 2017

IDENTITY FRAUD CHARGE DISMISSED/WIRETAP LAW CHARGE DISMISSED

by Robert D. Lewin

GB, a 25 year old immigrant from Nigeria, got involved in a scheme to defraud. Women in Texas were contacted online by a man (AB). The man romanced the women online and proposed to them and told them he needed them to wire money into a bank account of another man (CD – a fake name) so that the money could be used to buy a house for AB and the women to move into once they were married. Unbelievably the women bought into the scheme and wired the money into a bank account. AB had given the women the necessary information for them to wire the money to the specific bank account. GB, working with AB, had opened an account at a bank in Lawrence. To open the bank account GB had obtained a fake Zimbabwe driver’s license and a fake Zimbabwe passport in the made up name (CD). The account was opened in the fake name (CD). The women would wire the money into the account and then GB would withdraw it. The scheme netted over $40,000.00. Eventually bank security flagged the account and GB was contacted by the police. Bank personnel recognized GB because he had his own account in his own name at the bank and when he came in to make a withdrawal posing as CD the scheme unraveled. The police were called in. GB was questioned by the police in the police station. The police recorded the interview after GB signed a consent to have the interview recorded. During the police interview the police realized that GB was himself also recording the interview on his cell phone. GB had not disclosed the fact that he was recording. The police charged GB with Identity Fraud and Secretly Recording an Oral Communication.

GB retained Attorney Robert Lewin of North Andover to defend GB against the charges. The Massachusetts Identity Theft statute makes it a crime “to pose as another person” and use the identifying information of “another person“. GB had used the identifying information of a fictitious person and posed as a fictitious person. The legal question that was raised in this case was whether it is a violation of the Massachusetts Identity Theft statute to pose as a fictitious person or does the language “another person” mean another real person. There were no decisions is Massachusetts addressing this question.

Attorney Lewin did extensive research on this question. Several State Courts that have addressed this question have concluded that the phrase “another person” includes real and fictitious persons. The majority of the courts that have addressed this question, however, have concluded that the phrase “another person” requires proof that the identity of another real person was used. Attorney Lewin prepared a Motion to Dismiss the charge along with a lengthy and comprehensive legal brief arguing that the Massachusetts Law requires proof that the identity of another real person was used. The Motion to Dismiss was set down for hearing on June 1, 2017 in Lawrence District Court. When it came time to argue the Motion the District Attorney conceded that Attorney Lewin’s argument was correct on the law and the DA agreed to the identity fraud charge being dismissed. Attorney Lewin then turned to the Judge and told the Judge that the remaining charge (Violation of the Wiretap Law by secretly recording a conversation) was foolish in light of the fact that the police themselves were recording the conversation with GB in the police station. Attorney Lewin argued that the police suffered no harm in GB’s making a recording of the same meeting that the police were recording. The Judge agreed and ordered that charge dismissed as well.

June 21, 2017

Felony Charges Avoided

by Robert D. Lewin

TN, a 31 year old website developer, owns a home in Peabody. He rents out rooms in the house. A young woman and her boyfriend rented one of the rooms. Arguments developed between TN and the woman and her boyfriend. TN owns a cross-bow and a bow and arrow set. The tenants filed charges against TN alleging that TN had broken into their room and stole items from their room. The boyfriend also alleged that TN had pointed the cross bow at him and said that he would kill him. TN came to see Attorney Lewin and Attorney Lewin was confident that the charges could be defeated. A hearing before a clerk-magistrate at Peabody District Court was scheduled. An application for a criminal complaint had been filed against TN by the woman and her boyfriend. The application sought to have charges of Assault & Battery by Dangerous Weapon (the crossbow), Breaking and Entering, and Larceny Over $250.00 be issued against TN. To gain leverage TN filed an application for a criminal complaint to be issued against the tenant for larceny.

On June 6, 2017 Attorney Lewin, TN, the woman, and her boyfriend all appeared for a hearing in Peabody District Court before a Clerk-Magistrate. It was important for TN to avoid having a felony charge be issued against him because he works in high tech. At the conclusion of the hearing Attorney Lewin argued to the Clerk that none of these people should want to be in a criminal court. Attorney Lewin argued that this was really a dispute over money between a landlord and his tenants. In the end the Clerk-Magistrate denied the applications for criminal complaint. TN walked out of the Court with no criminal charges being issued against him. As a result of this disposition TN has NO criminal record.

June 21, 2017

Domestic Assault & Battery Charge Dismissed

by Robert D. Lewin

On January 28, 2017, SI, a 49 year old federal employee living in Malden with his wife and two children, went out and had a few drinks. When he came home he went into his 18 year old son’s room and asked his son to put his Xbox down and clean his room. The son told SI that he would do it tomorrow. Well, tomorrow never comes. SI and his son got into an argument. SI grabbed the Xbox and broke it. The son told SI to go f— himself. According to the son, SI grabbed the son and pushed him into the wall. SI’s wife called 911 and the police responded. SI got arrested and charged with Assault and Battery on a Household Member. SI went to court and was arraigned and then met with Attorney Robert Lewin. Attorney Lewin had represented SI in a similar case in 2014. In that prior case Attorney Lewin was successful in not having a criminal complaint be issued against SI and in proceedings with the Department of Children and Families Attorney Lewin was successful in getting the Department to unsupport an allegation of abuse. The present case raised the issue of the right of a parent to use reasonable force to discipline a child. In a 2015 decision, the Massachusetts Supreme Judicial court ruled for the first time (in its 213 year history) that a parent may use reasonable force to discipline a minor child. The Court did not decide if a parent can use reasonable force to discipline an adult child. Attorney Lewin fully prepared a legal argument to advocate on SI’s behalf that a parent has the right to use reasonable force to discipline an 18 year old child.

On June 21, 2017 Attorney Lewin and SI appeared in Malden District Court. The case was called for trial and Attorney Lewin answered that the Defense was ready for trial. The DA folded and the case was ordered DISMISSED. SI walked out of Malden Court a very happy client (for the second time).