Massachusetts Criminal Lawyer Blog

July 17, 2017

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

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).

March 29, 2017

FELONY LARCENY CHARGE AVOIDED

by Robert D. Lewin

TQ, a 29 year old woman from India with a degree in Computer Science, was apprehended on February 14, 2017 at a store at the Burlington Mall and charged with Larceny Over $250.00. The charge arose out of her stealing a $425.00 pair of designer sunglasses. Normally, stealing at the mall results in a charge of shoplifting (a misdemeanor). In this case, however, the police charged her with Larceny Over $250 (a felony). TQ consulted with and retained Attorney Robert Lewin from North Andover. Fortunately for TQ the police set the charge up for a hearing before a Clerk-Magistrate. This is critical. The police have three choices at the outset of a criminal case: (1) the Police can arrest the individual in which event the person is brought before a Judge for an arraignment on a criminal complaint and a criminal record is created; (2) the Police can release the individual without an arrest and have the court issue a criminal complaint and a summons for the person to come to court for an arraignment in which event a criminal record is created; or (3) the Police can chose not to arrest and not to summons the person to court but rather the police can file an application for a criminal complaint with the Clerk-Magistrate of the Court and request that the Clerk-Magistrate set the application down for a hearing before a Clerk-Magistrate. This third option – which is rarely used when the criminal charge is a felony – gives the accused person a chance to avoid prosecution and avoid a criminal record. In this third option the Clerk decides whether or not a criminal complaint (and summons) will actually be issued against the accused. That is the option the police chose with TQ.

Immediately after being retained Attorney Lewin contacted the store and he contacted the police prosecutor. Attorney Lewin confirmed that the matter was going to be set down for a Clerk-Magistrate Hearing. Attorney Lewin sent the Police Prosecutor a lengthy email setting forth TQ’s family and educational and employment background and the fact that she had never been in trouble before. It was critical to TQ to avoid a criminal record – especially for felony larceny; NO ONE wants to hire a thief and having a Larceny charge on your criminal record brands you as a thief. Attorney Lewin advocated hard with the Police Prosecutor to agree to a disposition of the case that did NOT involve a criminal complaint being issued against TQ.

On March 28, 2017 TQ and Attorney Lewin appeared in Woburn District Court for a Clerk-Magistrate Hearing. Attorney Lewin made a strong pitch to the Clerk-Magistrate not to issue a criminal complaint against TQ. Attorney Lewin was successful in getting the police to agree to ask the Clerk-Magistrate not to issue a criminal complaint. At the end of the Hearing the Clerk-Magistrate continued the hearing for four months and ordered that if TQ remained out of trouble then in four months she did not have to return to court and the application for criminal complaint would be denied and dismissed. As a result of this disposition Attorney Lewin explained to TQ the following;

March 21, 2017

JUVENILE MINOR IN POSSESSION OF ALCOHOL CHARGE AVOIDED

by Robert D. Lewin

On February 10, 2017, BH, a sixteen year old student at a prestigious private school, decided to have a party. BH invited a number of school age friends – and of course they brought along a few other friends one of whom brought alcohol to the party. They all drank for several hours. One of the young girls at the party apparently consumed some drugs. BH became very drunk and ultimately went out the back door of his house and collapsed in the snow. The girl left the party and went to a local store and collapsed in the store. She had to be brought to a local hospital. The police were summonsed to the house by neighbors. The rest of the party-goers scattered. The police found BH collapsed in the snow and brought him to the hospital. After investigation the police determined that the girl who collapsed in the store had been at the party and had consumed alcohol and drugs at the party. BH had hosted the party. Subsequently BH received a Notice of Complaint Application from the Essex County Juvenile Court. The police had applied for a juvenile complaint for minor in possession of alcohol against BH. BH was fortunate that the police did not charge him with furnishing alcohol to a minor (the girl). BH’s parents came to Massachusetts (they live out of state). BH and his parents met with and retained Attorney Robert Lewin from North Andover.

Attorney Lewin took a detailed statement of the facts of the case from BH. It became clear the the girl had brought the drugs to the party herself and had consumed the drugs without any help or encouragement from BH. Attorney Lewin met with the police prosecutor from the town involved and advocated for the charge against BH to be “diverted” out of the juvenile justice system. The Essex County District Attorney’s Office – to their credit – has created the Essex County Juvenile Diversion Program. The program is designed to prevent first time offenders from getting a criminal/juvenile record by diverting the case out of the criminal/juvenile justice system.

On February 28, 2017 BH, BH’s parents, and Attorney Lewin appeared in the Essex County Juvenile Court, Lawrence Division, for a hearing on whether or not a juvenile delinquency complaint would be issued against BH. BH is an honor student with a brilliant future and the last thing he needed was a criminal/juvenile record. Attorney Lewin had thoroughly prepared an argument to advocate for the diversion of the case. In addition, before the hearing date Attorney Lewin had met face to face with the director of the juvenile diversion program to discuss the case with her and to seek her approval of BH’s referral to the program. At the hearing before the Clerk-Magistrate of the Juvenile Court Attorney Lewin advocated firmly for diversion of the case. The police were on board and the people from the diversion program were on board. The Clerk-Magistrate adopted Attorney Lewin’s proposal and BH’s case was referred to the juvenile diversion program.

March 20, 2017

DOMESTIC ASSAULT & BATTERY DISMISSED IN SALEM DISTRICT COURT

by Robert D. Lewin

On January 14, 2017 DM, a 28 year old male social worker, met his 28 year old girlfriend after she finished work as a waitress. They met at a bar in Salem. They had a few drinks and then moved to a second bar where the drinking continued. At closing time they left the bar and after picking up roast beef sandwiches headed back to DM’s apartment in Beverly. They had recently made a commitment to one another that they would not see other people romantically and they both stated they wanted to make a real go of the relationship. They arrived at DM’s apartment, went in, and began to eat their sandwiches. It was a good night; but then the girlfriends phone started buzzing. It was 1:30 in the morning. DM grabbed the phone and ran into the bathroom and locked the door. He looked at the most recent string of text messages and they were from a man that the girlfriend had been seeing. He knew she was not being sincere with him. DM was angry and hurt and came out of the bathroom and demanded that she leave. The girlfriend grabbed DM’s Christmas tree and threw it to the floor causing it to break. She then grabbed the corner of DM’s wide screen TV. DM ran over and grabbed the other corner of the TV. The girlfriend claimed that DM then pushed her down a flight of stairs. DM claimed she tripped and fell down the stairs. In any event she did end up down the stairs and her teeth had actually punctured through her lower lip. There was blood on her clothes and on the wall. She got up an left the apartment. She drove herself to the hospital. Her lip was sutured and photographs were taken of her face and lip. The hospital report stated that she was intoxicated and reported that her blood alcohol level was over twice the legal limit.

The next morning she went to the Beverly Police and reported the incident. The police obtained a warrant for DM’s arrest and he was taken into custody and arraigned in Salem District Court and held on $1,500.00 bail. His family posted the bail and he was released.

DM consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin and DM went over the facts of the case in great detail. DM was able to get a picture of the broken Christmas Tree and the damaged television. Photos were also taken of the location of the television right at the top of the stairs. Attorney Lewin pointed out to DM that his girlfriend had a Fifth Amendment privilege to not to testify. If she did testify she could incriminate herself in no less than three crimes: malicious destruction of the Christmas tree, malicious destruction of the television, and operating under the influence. Attorney Lewin went to the Court and filed a Motion for permission to contact the girlfriend. (The Judge, at DM’s arraignment, had ordered DM to have no contact – directly or indirectly – with the girlfriend.) The Judge granted Attorney Lewin permission to contact the girlfriend. Attorney Lewin did contact the girlfriend and explained to her how her testifying against DM could put herself in trouble. Attorney Lewin followed up the phone conversation with a letter to the girlfriend explaining in detail her Fifth Amendment privilege not to testify in the case.

March 20, 2017

DOMESTIC ASSAULT & BATTERY CHARGE DISMISSED: DEPORTATION AVOIDED

by Robert D. Lewin

On December 31, 2016 (New Years Eve day) WQ, a 27 year old software engineer who is a resident alien from Russia, got into an argument with her husband. The couple live in Andover, MA. WQ lost control and physically attacked her husband scratching his face and arms and back. He fled the house and went to the police station. He told the police he did not want her arrested. The police photographed his injuries and then went to the house and arrested WQ. She admitted to the police that she had scratched him but she said it was in self-defense.

WQ consulted with and retained Attorney Robert Lewin of North Andover. Attorney Lewin was quite familiar with WQ and her husband as Attorney Lewin had represented her husband one year earlier in a domestic assault charge that had been filed against the husband by WQ. (See the posting on this blog dated February 24, 2016). The husband agreed to have Attorney Lewin represent his wife in this case.

After reviewing the facts it became clear to Attorney Lewin that a good case of self-defense could be made out by WQ. Attorney Lewin thoroughly prepared WQ for trial based on self-defense. Attorney Lewin and WQ had two lengthy trial preparation sessions during which Attorney Lewin prepared WQ for her testimony in Court.

March 20, 2017

ANOTHER DOMESTIC ASSAULT & BATTERY CHARGE DISMISSED

by Robert D. Lewin

On December 10, 2016 TD, a 63 year old corporate executive living in Andover, MA got into an argument with his wife. She claimed that TD grabbed her by the wrists and pulled her to the floor. She got on the phone and called 911; he grabbed an extension line and the two of them told the police that each had been assaulted by the other. The police responded to the house, spoke to each of them separately, and TD got arrested. TD and his wife had a long history of assault charges and abuse prevention orders (restraining orders) between them. TD consulted with and retained Attorney Robert Lewin of North Andover.

Attorney Lewin took a completely statement of the facts from TD and a complete history of TD’s relationship with his wife. It became clear that TD was the victim and that his wife suffering from mental illness. It became apparent that TD’s wife had attacked TD with a Swiffer Mop and then pulled TD’s hair at which point TD did grab his wife’s wrists in self defense.

Attorney Lewin advised TD to take the case to trial and the case was set down for trial on March 13, 2017 in Lawrence District Court. TD and Attorney Lewin met in Attorney Lewin’s office for two 1 1/2 hour trial preparation sessions. TD was thoroughly prepared for all the questions that Attorney Lewin would ask at the trial. In addition Attorney Lewin prepared TD for cross-examination (questions that TD would be asked by the prosecutor). On March 13, 2017 the TD and Attorney Lewin appeared in Lawrence District Court and answered ready for trial. Attorney Lewin had pictures of the Swiffer Mop. The prosecution then announced that they were declining to prosecute and the case was dismissed. (This was the third domestic assault and battery case in the last two weeks that Attorney Lewin was successful in getting dismissed.)

March 16, 2017

Domestic Assault Charge Avoided

by Robert D. Lewin

ED, a 61 year old financier, lives on the first floor of a two family house in North Andover. His brother and father live on the second floor. ED and his brother have been on bad terms with one another for years. On February 19, 2017 ED went upstairs to the second floor apartment to check on his father. ED and his brother got into an argument. The brother called the North Andover Police and told the police that ED had pushed the brother to the floor. The police came to the house and spoke first to the brother. The brother repeated that he had been pushed to the floor by ED. The police then went and spoke to ED. ED told the police that there had been an argument and that the two brothers had pushed one another. The North Andover Police filed applications for criminal complaints for assault against both brothers. The applications were set down for a hearing on March 16, 2017.

ED consulted and retained Attorney Robert Lewin from North Andover. ED had no criminal record and worked in banking and was at risk of losing certain banking and finance licenses. Attorney Lewin learned that ED and his brother do not talk to one another. Attorney Lewin reached out to the brother and spoke with the brother. Attorney Lewin impressed upon the brother that criminal court is a place where no one wants to be if it can be avoided. The brother agreed with Attorney Lewin’s assessment of the situation.

On March 16, 2017 ED and Attorney Lewin and ED’s brother appeared in Lawrence District Court for the Clerk-Magistrate Hearing. Attorney Lewin indicated to the Clerk-Magistrate that neither brother wished to go ahead. The Clerk-Magistrate dismissed both applications for criminal complaint that had been filed by the North Andover Police.