Massachusetts Criminal Lawyer Blog

February 17, 2017

Theft by Nanny Charge Avoided

WX, a 32 year old professional nanny, was hired by a well to do family in Essex County to work as a nanny for their four children. WX worked for the family for 18 months and a strong relationship developed between WX and the entire family. WX was terrific with the children, one of whom was physically disabled. WX and the Mother of the children developed a frienship. The mother bought very high end children’s clothing and accumulated a great deal of new expesnive children’s clothes. WX is a single parent of two of her own children and financially was having difficulties. WX began to steal some of the clothing from the family and over a period of about two months stole in excess of $1,700.00 of the clothing. WX began to sell the clothes online. The mother discovered the online sales of the clothes that she had bought. WX had taken photos (to display the clothes online). Unfortunately for WX she had taken the photos of the clothes in the home where she worked and the mother immediately recognized her home in the pictures. The mother reported this to the police. The police called in WX who confessed. WX received a Notice of Complaint Hearing from Lawrence District Court for Larceny Over $250. WX spoke with several lawyers and retained Attorney Robert Lewin from North Andover.

Attorney Lewin explained to WX that if there is anything that helps make these cases go away it is being able to pay the restitution ($1,700.00 in this case) without delay. Attorney Lewin immediately reached out to the police prosecutor and to the investigating detective and advocated for a disposition of the case at the Clerk-Magistrate Hearing that would not involve the issuance of a criminal complaint. WX was very lucky: (1) Larceny Over $250 is a felony and is an arrestable offense and she could have been arrested the day she walked into the police station. The police did not arrest her; (2) Larceny Over $250 – being a felony – is a crime for which there is no right to a hearing before a Clerk-Magistrate to decide if a criminal complaint will be issued. Normally when a person is accused of Larceny Over $250 the police either arrest or have the Court issue a summons. In WX’s case the police did not arrest nor did they request a summons. (A summons means that a criminal complaint issues without a hearing and a criminal record is created when the person appears in Court for an arraignment on the summons.) The police requested that a hearing take place to decide whether or not a criminal complaint would be issued against WX. Attorney Lewin recognized that this was unusual and felt that perhaps the police and/or the victim family would be willing to resolve the case without a criminal complaint being issued against WX. Attorney Lewin advocated hard with the police to agree to settle the case at the hearing without a criminal complaint actually issuing against WX.

On February 16, 2017 Attorney Robert Lewin and WX appeared at Lawrence District Court for the hearing. Also present were the Husband and Wife from whom WX had stolen the clothes and the Police Prosecutor. The hearing proceeded. The purpose of a Clerk-Magistrate Hearing is simply for the Clerk-Magistrate to determine if there is probable cause to issue a criminal complaint so that the case can proceed in regular criminal court. In an appropriate case – even when there is probable cause – the Clerk-Magistrates have the discretion to not issue a criminal complaint. Attorney Lewin explained to the Clerk-Magistrate and to the Husband and Wife from whom the clothes had been stolen that WX was prepared to pay the $1,700 in restitution immediately. The police (and to everyone’s surprise) the Husband and Wife were agreeable to a criminal complaint not being issued against WX. The issuance of a criminal complaint would have ruined her career as a nanny. No one wants to hire a thief; and having a charge of Larceny Over $250 on your record brands you as a thief. The Clerk-Magistrate hearing the case was at first extremely reluctant to not issue a complaint. He spoke of the breach of trust and the amount of money involved and the taking of pictures of the clothing in the victim’s home. The Clerk-Magistrate gave WX a long lecture, but in the end he went along with Attorney Lewin’s request to not issue the criminal complaint. The Clerk-Magistrate continued the hearing for six months. He ordered WX to pay the $1,700.00 immediately – which she did. He ordered her to perform 20 hours of community service and to not violate the criminal law.

February 2, 2017

Domestic Assault & Battery – DISMISSED

by Robert D. Lewin

In the late summer of 2016 NU, a 31 year old technician from Lowell and his then girlfriend KD were going through a breakup in their relationship. The biggest issue in the breakup was a “custody dispute” over who was going to get the dog. (You could not make this story up.) KD wrote to Judge Judy (the TV Judge) and told Judge Judy about the case. Judge Judy wanted the case for TV and flew both NU and KD to California where the two of them AND THE DOG appeared on the show. Judge Judy ruled that KD had not made out her case that the dog was hers and the dog remained with NU. On October 15, 2016 NU and the dog flew back to Massachusetts. On October 16, 2016 NU and the dog were in NU’s apartment. NU began receiving text messages from KD that she needed to see the dog and have “one last reunion with the dog”. KD pleaded that she was heartbroken and wanted to see the dog. NU said no. KD’s text messages continued and then she began calling him and then she told him that she was outside his apartment building in the street and would he bring the dog out. NU relented and brought the dog outside. KD and NU went to a bench in a park across the street from NU’s apartment building. KD’s car was parked in the street in front of NU’s apartment building. Suddenly NU grabbed the dog and ran through the park toward another car that was parked across the park. As she approached that other car the back door of the car opened and a man reached out for the dog. A second man was sitting in the driver’s seat of the running car. KD claimed that NU pushed her to the ground injuring her arm and leg and grabbed the dog and then ran back to his apartment with the dog. KD called the Lowell Police who responded. KD told the police the dog was hers and that NU had pushed her to the ground causing her to injure her arm and leg. The police went to NU’s apartment; the police arrested NU!! The police charged him with Assault & Battery on his ex-girlfriend. The police seized the dog and gave the dog to KD. NU was held in the police station overnight and was brought to Lowell District Court on the next morning and was arraigned. The case was continued for pre-trial hearing.

NU, after speaking with several lawyers, met with Attorney Robert Lewin from North Andover and hired Attorney Lewin. NU vehemently denied pushing or touching KD in any way. NU said KD got injured when she fell trying to run to the car with the dog.

On January 18, 2017 the case was called for jury trial in Lowell District Court. Attorney Lewin answered that he was ready for trial. Attorney Lewin then told the Judge that the two men – both of whom were present in Court and ready to testify for the Commonwealth – and KD had engaged in a criminal conspiracy to steal the dog from NU. Attorney Lewin said that each of the three witnesses for the Commonwealth could themselves be prosecuted for the crime of Conspiracy to Steal and that each of the three witnesses should be warned of their right not to incriminate themselves. The Trial Judge agreed and the Judge appointed three separate attorneys to speak to the three witnesses. Attorney Lewin explained to each of the lawyers the circumstances showed overwhelmingly that the two men and KD had conspired (agreed) to go to NU’s apartment in Lowell, to lure him and the dog outside, and then to grab the dog, throw the dog in the awaiting car with the two men, who would then drive off with the dog. Within ten minutes the two men let it be known that they would exercise their right not to incriminate themselves and NOT testify in the case. It took another twenty minutes and then KD (the ex-girlfriend) saw the light and she decided not to testify. The case was called again by the Judge and the DA told the Judge that their three witnesses were declining to testify and the Commonwealth could not go forward. Attorney Lewin immediately moved for a dismissal of the case and the case was ordered dismissed.

February 2, 2017

Violation of an Abuse Prevention Order – NOT Guilty

by Robert D. Lewin

On October 16, 2016, NU, a 31 year old technician from Lowell was arrested and charged with Assault & Battery on his ex girlfriend. He was held overnight and on October 17, 2016 he was brought to Lowell District Court to be arraigned. He was arraigned on the Assault & Battery charge. His ex girlfriend was present and had applied for an Abuse Prevention Order (Restraining Order). The Court conducted a hearing and granted the Abuse Prevention Order. The order, among other things, ordered NU to have no contact, directly or indirectly, “in person, by telephone, in writing, electronically or otherwise” with his former girl friend. NU and his former girl friend had been fighting over custody of a dog.

On October 20, 2016 NU and his attorney (not Attorney Lewin) were having a telephone conversation. The attorney asked NU for NU’s former girlfriend’s telephone number. NU went to his iPhone, went into his text messages, got the last text message from his ex-girlfriend, hit the detail button, then hit the i (information) button on the screen to get her phone number. NU then read the phone number to his attorney. NU then put the phone up to his cheek and continued his phone conversation with his lawyer. When NU finished the phone conversation the screen on his iPhone reverted to the text message screen and NU saw that a location ping had been sent to his ex-girlfriend. This apparently happened when NU put the phone up to his cheek. This was a “cheek” call, similar to a butt call. Within ten minutes the police were at NU’s house and he was arrested for violating the abuse prevention order.

NU and his family retained the same lawyer. NU and his family became dissatisfied with the work that the lawyer was doing on the two cases (the original Assault & Battery charge and now the Violation of the Abuse Prevention Order charge) and sought out another lawyer. NU met with Attorney Robert Lewin from North Andover for a free 2 hour initial consultation. NU and his family retained Attorney Lewin to handle both cases.

February 2, 2017

GUN CHARGE REDUCED – NO JAIL

by Robert D. Lewin

On November 16, 2016, DX, a 24 year old electrician from New Hampshire, was driving from a job site in Massachusetts back to his home in NH. He drove thru a red light in Salisbury and got pulled over by the police. When the officer reached the car and looked inside he immediately observed a fully loaded magazine for a handgun in plain view on the passenger seat. The officer immediately asked the driver if he had a LTC (License To Carry) or an FID (Firearm Identification Card) card and the driver replied no. The officer had the driver exit the car and immediately cuffed the driver. The driver was placed in the rear of the officer’s cruiser. During a subsequent search of the vehicle the handgun (a Smith & Wesson Military and Police 9mm Shield model sidearm) was located in the unsecured glovebox. Also located in the vehicle was a black concealed carry paddle holster. The rounds inside the magazine were found to be 9mm hollow-point rounds. DX was charged with Carrying a Firearm without a LTC (not in the home and not at place of business). This is a felony and carries a mandatory minimum 18 months in jail with no parole and no suspension of the sentence. He was also charged with possession of ammunition without an FID card. This is a misdemeanor and carries a sentence of up to two years in the House of Correction (no mandatory minimum sentence). The District Attorney and the police were concerned with several aspects of the case. The hollow point bullets are designed to maximize the injury they cause and the holster is designed to be worn in side the pants so as not to be visible. DX was brought to the police station and held on a high cash bail. The following morning DX was brought to Newburyport District Court, he was arraigned, and he was released on a $3,000.00 cash bail. DX and his family interviewed several lawyers and then retained Attorney Robert Lewin from North Andover.

Attorney Lewin met at length with DX and his family. Attorney Lewin explained that he needed to put together a persuasive memorandum for the District Attorney to get the District Attorney to reduce the gun carrying charge from the felony with its 18 month mandatory minimum sentence to a misdemeanor charge with no sentence. Attorney Lewin explained to DX that he was at real risk of getting the 18 month mandatory minimum jail sentence. Attorney Lewin had DX furnish Attorney Lewin with his electrician’s license, his high school and community college diplomas, and a letter from DX’s employer attesting to DX’;s qualities as a good employee.

Gun cases in Essex County are all reviewed by the First Assistant District Attorney for the County. Attorney Lewin immediately contacted the supervising Assistant District Attorney at Newburyport District Court (a prosecutor Attorney Lewin has known for over twenty years and with whom Attorney Lewin enjoys a great professional relationship). Attorney Lewin prepared a lengthy memorandum for the DA in which Attorney Lewin advocated for a reduction of the gun carrying charge and a probationary sentence. The supervising Assistant District Attorney in Newburyport sent Attorney Lewin’s Memorandum up to the First Assistant District Attorney for the County in Salem. After a review and some further discussion the District Attorney’s Office agreed to a reduction of the felony gun carrying charge to a misdemeanor with no jail time.

January 23, 2017

WACKY THEFT CHARGE DISMISSED

by Robert D. Lewin

XD, a 60 year old software engineer, is an avid (perhaps over avid) environmentalist. Every day on his way to work he would pass a house in North Andover the owner of which had a pest control and pesticide business. On the front lawn of this North Andover home the owner had a small sign advertising his pest control business. XD does not approve of pesticides. XD would leave for work very early before the sun would come up. Over a period of months he would periodically remove the pest control signs. The homeowner decided to set a trap for this two legged pest. The homeowner set up a camera and one Saturday morning sat in his truck and waited. Sure enough XD came along; XD parked his own vehicle up the street, exited his vehicle, walked down to the lawn, walked over to the sign, and pulled the sign from the ground. The owner leaped from his truck. XD ran to his vehicle and drove away, but not before the homeowner got the license plate. Within an hour the North Andover Police showed up at XD’s door. XD admitted his wrongdoing and the police told him he would receive a summons. The summons came and XD was charged with Larceny. XD consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin told XD that the input of the home/sign owner would be important and it would be helpful if we could win him to XD’s side. Attorney Lewin called the home/sign owner and engaged him in a productive and helpful conversation. Sometimes knowing what NOT to say is more important than knowing what to say. Attorney Lewin was able to get the home/sign owner to agree to speak with the District Attorney and to get him to tell the District Attorney he was not opposed to the criminal charge being dismissed. XD agreed to pay the home/sign owner restitution for the dozen signs that XD had removed ($250.00 total).

On October 21, 2016 XD and Attorney Lewin appeared in Lawrence District Court for XD’s arraignment. Prior to the arraignment Attorney Lewin had already spoken to the District Attorney about the case and the DA had agreed to a general continuance of the case for six months with a dismissal. On October 21, 2016 the case was continued generally to January 20, 2017. On January 20,2017 the case was dismissed. A general continuance is not a plea bargain; it does NOT involve a guilty plea or an admission of any kind. It is NOT a continuance without a finding which is a plea bargain and which does involve an admission of guilt.

Because XD works in a security clearance environment avoiding a conviction or even an admission of guilt was important. With a general continuance and a dismissal there was no conviction, no finding of guilt, no “admission to sufficient facts”. On January 20, 2016 XD walked out of Lawrence District Court a happy man.

January 9, 2017

Hit & Run and False Report to An Insurer Charges Avoided

by Robert D. Lewin

DT is a 29 year old software developer from India in the US on a work visa. On December 10, 2016 he went out for a few drinks and on the way home crashed his car in Lowell. The Lowell police responded to the accident scene and DT gave the police a story that he was too drunk to drive and another fellow (whom DT did not know) was driving the car and that other fellow took off after the accident. The police did not arrest DT nor did they cite him. The next day he gave the same report to his insurance company. About a week later DT received a letter from the Lowell Police saying that they were investigating his accident and they had video evidence that he was in fact the driver. The letter indicated that the police were contemplating charging him with DUI and making a false statement to a police officer and hit and run. (A hit and run charge in Massachusetts can be based on a driver’s failure to identify himself as the driver at the scene of an accident.) DT’s insurance company contacted DT about his “story” and expressed concerns about the veracity of DT’s story. (Making a false insurance claim is a criminal offense.) DT contacted Attorney Robert Lewin of North Andover. Attorney Lewin explained to DT that Attorney Lewin knew the Lowell officer in charge of his investigation. Attorney Lewin explained to DT that the best thing to do in DT’s situation would be for DT’s lawyer to quickly communicate with both the Lowell Police Officer and the representative for the insurance company. DT told Attorney Lewin that DT had spoken to numerous lawyers and had gotten all kinds of advice but that Attorney Lewin was the first lawyer who set out a plan of action and was prepared to move on it immediately before things got worse. DT retained Attorney Lewin.

Within 2 hours of being retained Attorney Lewin had DT’s entire situation resolved. Attorney Lewin called the Lowell Police and spoke with the officer in charge of the investigation. The officer agreed that DT would not be charged with any criminal offenses arising out of the accident or his false statement to the officer at the scene of the accident. Attorney Lewin then spoke with a representative from the insurance company. The insurance company then not only agreed not to seek a criminal charge against DT for filing a false insurance claim but the company agreed to pay DT for the complete loss of his vehicle!

Attorney Lewin explained to DT the old adage: “When you find yourself in a hole, stop digging.” DT kept getting himself in deeper and deeper with his stories. By jumping on the case immediately and by contacting the police and the insurance company immediately, Attorney Lewin was able to avoid DT from being prosecuted and from being deported. DT is now a happy camper.

January 9, 2017

Warrants for Two Old DUI Cases Cancelled and Cases Dismissed

by Robert D. Lewin

In May of 1984 KW, then age 24, was arrested in Andover for Operating Under the Influence of Liquor and several other criminal offenses. One month later in June of 1984 KW was arrested again for Operating Under the Influence of Liquor in Wakefield. KW then flew the coop; he left Massachusetts and has been living in Arizona ever since. Warrants for KW’s arrest were issued in both Lawrence District Court and Malden District Court. He was able to get an AZ license and for years ignored the two warrants in MA. Recently Arizona refused to renew KW’s AZ license because he was under suspension in MA because of the two warrants. KW was hesitant to return to MA for fear that he would get locked up – particularly when he went to the first court to get the warrant cleared. He feared that the Judge in the first court would order him put into custody and held for the second court.

KW contacted Attorney Robert Lewin from North Andover. Attorney Lewin explained to KW that if he ever wanted to drive legally again he would have to get these warrants and the cases cleaned up. KW retained Attorney Lewin. Attorney Lewin was able to get the papers from both courts. The police officer in the Wakefield case retired just four months ago; however, no police report could be found in the Wakefield case. The police officer in the Andover case had retired almost ten years ago, but he was still around(!) and he had the police report from the case!!

On November 21, 2016 KW and Attorney Lewin went into Malden District Court and the Judge ordered the Malden Court warrant cancelled. The Malden Court case was then continued to December 2, 2016 to give the DA one last opportunity to see if they could put the case together. The Judge did not lock KW up on the warrant for Lawrence District Court but allowed KW to go with Attorney Lewin to Lawrence. Two hours later KW and Attorney Lewin appeared in Lawrence District Court. As in Malden District Court, the Judge ordered the warrant in Lawrence District Court cancelled and that case was continued to the same December date.

December 4, 2016

FELONY GUN CHARGE DISMISSED

by Robert D. Lewin

KW, is the 42 year old owner of a medical care corporation. His company is a multi million dollar company. Because he is heavily involved with medicare and medicaid patients both Federal Law and State Law prohibit him from having an administrative or ownership position in the company if he is a convicted felon. In 2008 KW had a large collection of firearms. As the result of a theft case involving a replica gun silencer KW was forced to surrender his License To Carry (LTC) and his Firearm Identification Card (FID). In addition he was required to get rid of all his firearms and ammunition. KW surrendered his LTC and his FID Card and he surrendered all his weapons and ammunition – at least he thought he did. In 2016 (8 years later) the police conducted a consent search of KW’s house in Tewksbury as the result of an investigation of certain criminal accusations being made against KW. During the search the police found a .22 Magnum caliber, North American Arms mini-reolver and 71 rounds of ammunition. The police arrested KW and charged him with (Misdemeanor) Possession of a Firearm (in the home) without a license and (Misdemeanor) Possession of Ammunition (in the home). Because the gun was not properly secured and stored he was also charged with Improper Firearm Storage. The Improper Storage charge is a felony and a conviction would disqualify him from working in the medical care business – the only business he has done for twenty years. Even a continuance without a finding on that charge would not help him as the Federal Government treats a continuance without a finding as if it were a conviction.

KW hired Attorney Robert Lewin from North Andover. The two misdemeanor charges would not affect KW’s ability to work in the medical care business. The felony charge would put him “out of business”. Attorney Lewin negotiated at length with the DA’s Office at Lowell District Court to dismiss the Improper Storage charge. The DA refused to budge on that charge because there were children in the house and it was one of the children who had brought the presence of the gun and the ammunition to the attention of the police. For eight months Attorney Lewin doggedly advocated on KW’s behalf with the DA to drop the Improper Storage Count. Attorney Lewin put together a lengthy Memorandum for the DA specifying in detail the disastrous consequences that would follow from either a conviction or a continuance without a finding on the Improper Storage Charge. On December 1, 2016 Attorney Lewin and KW appeared in Lowell District Court. The DA finally gave in and agreed to dismiss the improper storage count. KW took a year probation on the other two counts and is still working full steam ahead in his medical care corporation. KW left the Courthouse a very happy man realizing that he had dodged a big bullet, so to speak!

The key in this case was just never giving up. It took eight months to get the result the client needed and for eight months we advocated and persevered. The wait and persistence paid off.

December 4, 2016

HIT & RUN: DISMISSED PRIOR TO ARRAIGNMENT

by Robert D. Lewin

EN, the 36 year old owner of a manufacturing company and a North Andover Resident, received a citation in the mail for leaving the scene of a property damage accident in the O’Neill Tunnel in Boston. EN’s company owns about ten vehicles and employs about 40 people. EN knew nothing of any alleged accident. EN researched his company records and was able to identify the particular truck and driver. The driver had no recollection of any accident and denied being in any accident. EN failed to appear for a Clerk-Magistrate Hearing and a criminal complaint issued against EN for Leaving the Scene of a Property Damage Accident. EN was summonsed to court for an arraignment (Boston Municipal Court, Central Division). He went into the arraignment without an attorney thinking he just had to tell the Judge that he was not driving and the case would go away. The Judge told EN to get a lawyer and come back to court with his lawyer. The Judge continued the arraignment to Friday, December 2, 2016.

EN consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin contacted the State Police to see if they had any video recording of this supposed accident. From experience in other cases Attorney Lewin is familiar with the video recording system in the O’Neill tunnel complex in Boston. In addition Attorney Lewin had EN research the company payroll records to verify exactly who had the truck on the day in question and whether the tunnel was on the truck route for that date. Attorney Lewin prepared and filed a Motion to Dismiss the case (prior to arraignment) on the grounds that there was no evidence that EN was operating the vehicle on the date alleged in the police report. The police report simply stated that EN owned the truck. There was no evidence that EN was driving the truck. A Motion to Dismiss a criminal complaint for lack of probable cause is called a DeBenadetto Motion. In addition Attorney Lewin prepared and filed a Motion to Dismiss the complaint for failure of the police to furnish the video.

On December 2, 2016 EN and Attorney Lewin appeared in the arraignment session of the Boston Municipal Court. Attorney Lewin explained to the DA that there was no evidence that EN was driving the truck. Attorney Lewin insisted that the DA dismiss the case. The DA agreed but then the DA hesitated. The case was called and Attorney Lewin explained the facts to the Judge and the Judge ordered the case dismissed prior to arraignment. The significance of the dismissal being ordered prior to arraignment is that now the case will NOT show up on EN’s CORI (Criminal Offender Record Information). EN and Attorney Lewin walked out of the Courthouse two happy people!

November 4, 2016

Leaving The Scene Trial – Not Guilty

by Robert D. Lewin

On St. Patrick’s Day of 2016 QN, a 20 year old laborer from Melrose, went into Cambridge with a friend to celebrate. The friend picked QN up at QN’s house and drove to the T station at Oak Grove in Melrose. The two men took the T into Boston and Cambridge and went to a club (that allows persons under 21 in). While waiting at a T stop to change from the orange line to the red line QN took a selfie of himself and the other fellow. In the selfie QN is wearing a bright Kelly green shirt and has a full beard. After the men were at the club for several hours they left and returned via the T to the Oak Grove Station in Melrose. They got in the other fellows car and they went to Kelly’s in Saugus and ate and then the other fellow drove to QN’s house. QN got out of the car and ran into his house to get the keys to his own car which had been parked on the street. Melrose has an ordinance banning overnight parking on the street. It was now about 1:15 AM. QN moved his car into his driveway and then left his keys and cell phone in his car and proceeded into his house and went to sleep.

Forty-five minutes later QN’s car was involved in a high speed police chase from Lynn into Swampscott. A police car following QN’s vehicle momentarily lost sight of QN’s vehicle after the vehicle crested a hill. Once the police car crested the hill, the police officer observed that QN’s vehicle had horribly crashed into a stone wall. The police officer parked a safe distance behind QN’s crashed vehicle and began to approach the vehicle. The officer then observed a white male with a round face with blondish hair wearing a blue or gray t-shirt exit the vehicle and begin to run. The officer gave chase. The man catapulted over a fence and the officer gave up the chase. The State Police K-9 unit was called in and for two hours the police and dogs searched the area but found no one. The Officer went back to his police car and ran the registration plate on QN’s car in his mobile data terminal (MBT). The response from the Registry gave QN’s name and address and also furnished a color photo of QN from his driver’s license. The photo showed a white male with a round face and blond hair. At the trial of the case the officer testified that when he saw the picture on his MBT he said to himself – “Damn, that’s him”.

QN was charged with Leaving the Scene of a Property Damage Accident and Negligent Operation and Refusing to Stop for a Police Officer. QN and his family retained Attorney Robert Lewin from North Andover. QN insisted that after he left his car in the driveway at 1:15 AM he did not drive it and that he was in bed. QN insisted that his car was stolen.