Massachusetts Criminal Lawyer BlogKM, an eighteen year old college student, was caught shoplifting at Kohl’s in North Andover on February 13, 2016. She had picked up make-up to the tune of $190.00 and hidden it in her coat pocket. Unfortunately for her a loss prevention officer was watching her on video and saw everything. She headed passed the registers and out the door of the store without paying and was stopped by the loss prevention people and brought back into the store. The North Andover police were called and responded to the store. Subsequently, KM received a Notice of Complaint Hearing from Lawrence District Court. KM and her Mother consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin consulted immediately with the police prosecutor from North Andover. KM wrote out a letter of apology to Kohl’s and Attorney Lewin furnished a copy to the police prosecutor. In addition KM went to speak with a counselor. On March 24, 2016 KM and Attorney Lewin appeared in Lawrence District Court for a hearing before the Clerk-Magistrate. The Clerk-Magistrate found probable cause to issue a criminal complaint against KM, but referred her to the Essex County Diversion Program. The Diversion Program – if successfully completed – causes the criminal case to be “diverted” out of the criminal justice system and NO criminal record is created. In KM’s case the diversion program will require KM to complete 15 Hours of Community Service, write an essay, and meet with a counselor. As a result of this disposition KM will have NO criminal record. KM and her Mother left the court house happy with the result.
SHOPLIFTING CASE DISMISSED: INDIAN IMMIGRANT
Over a three week period KW, a 40 year old Indian National and her husband, both from Andover, had been going to a gas station in Lawrence and stealing coffee and firewood. When they were discovered the owners of the gas station went back through the daily videos and observed KW and her husband shoplifting at the gas station ten times over a three week period. The next time KW and her husband arrived at the station the owner called the police and the police responded immediately. KW and her husband were both charged with shoplifting. KW and her husband received a Notice of Complaint Hearing before a Clerk-Magistrate. They thought they would be smart and go to the hearing without a lawyer. At the hearing the Clerk found probable cause to charge them and criminal complaints were issued against KW and her husband charging each of them with Shoplifting. KW is not a citizen and shoplifting is a crime of moral turpitude and presumptively deportable. KW consulted with and retained Attorney Robert Lewin of North Andover. Attorney Lewin immediately consulted with the District Attorney and pointed out to the DA that any guilty finding or even an admission by KW could cause her immediate deportation. After considerable advocacy by Attorney Lewin, the District Attorney agreed to dismiss the charges against both KW and her husband. On March 24, 2016 Attorney Lewin and KW and her husband appeared in Lawrence District Court and the Judge ordered all the charges dismissed. KW was thrilled with the result and gave Attorney Lewin a big squeeze and a hug outside the Court.
RUSSIAN IMMIGRANT DOMESTIC ASSAULT BATTERY CHARGE DISMISSED
JF, a 36 year old resident alien from Russia, lived in Andover with his wife, also a resident alien from Russia. Both he and she are software engineers. On Friday evening, November 6, 2015, JF went to a retirement party for a fellow employee at a hotel in Andover. JF’s wife was angry with JF because she felt he was having an affair with another woman – an accusation that he denied. She declined to go to the retirement party with him. According to the Andover police reports at 6:40 in the morning on Saturday, November 7, 2015 the police responded to a 911 call from JF’s apartment. Upon arriving they found JF and his stunning 26 year old wife in the apartment. The police report reads: “I could hear crying coming from the bedroom so I entered the room and observed a female sitting on a mattress on the floor in the back corner of the room. .. She was crying hysterically and could barely speak. She had a laceration to her left eye that was red and swollen and a bruise at the corner of her right eye. Her face was red and appeared to be swollen. I also observed scratches on her right arm. She had a bloody paper towel that she was patting her eye with. I asked her what happened and she replied that her husband (JF) came home at 4:30 AM drunk and they began arguing. She stated that her husband then pushed her to the ground and when she tried to get up he grabbed her by the back of the neck with one hand and was punching her in the face with a closed fist with the other hand. She was shaking and hyperventilating while trying to speak to me.” A police photographer was called to the apartment and numerous color photos of JF’s wife were taken. The police arrested JF and brought him to the Andover PD. The following Monday JF was arraigned in Lawrence District Court and his case was continued to December 11, 2015 for a pre-trial hearing. JF contacted, met with, and retained Attorney Robert Lewin in North Andover. Attorney Lewin took a detailed statement of the facts of the case and learned that in fact it was JF’s wife who had been the primary aggressor in the fight and she was the person who started the fight. In addition Attorney Lewin learned that it was JF, and not his wife, who made the 911 call to the police because he was afraid that his wife was going to kill him. Attorney Lewin filed the appropriate motions to obtain a copy of JF’s 911 call to the police. (The Commonwealth was slow to turn this over because they knew it hurt their case but the Defense got the 911 call.) In addition JF had been badly beaten and scratched by his wife and (fortunately) the police had taken photos of JF and Attorney Lewin secured color copies of those pictures. On December 11, 2015 JF and Attorney Lewin appeared in Lawrence District Court and the case was continued for a jury trial to February 23, 2016. Attorney Lewin met with JF’s wife and established an excellent relationship with her. Attorney Lewin explained that she had both a Marital Privilege not to testify against her husband as well as a Fifth Amendment Privilege not to testify. Attorney Lewin fully prepared JF for the trial. A “mock trial” was conducted in Attorney Lewin’s office. Attorney Lewin “role played” the part of the Assistant District Attorney and prepared JF for his cross-examination by the District Attorney. On February 23, 2016 Attorney Lewin and JF appeared at Lawrence District Court and answered ready for trial when the case was called. JF’s wife exercised her marital privilege and declined to testify. The Commonwealth decided not to go ahead with the case (although they could have). Attorney Lewin moved that the charge be dismissed and the Judge ordered the case dismissed. Had JF been convicted he may very well have been deported back to Russia. JF and his wife left the Court House arm in arm very happy with the outcome.
CASE OF MISTAKEN IDENTITY: ALL CRIMINAL CHARGES DISMISSED
In the summer of 2015 a male in his early 20s went into a Market Basket store in Lawrence and stole a Mountain Dew. As he was headed out of the store he was confronted by a loss prevention officer. A scuffle broke out and the police were called. The police responded quickly and the male settled down. When asked for identification he said his name was SG and he gave a date of birth and an address in Nashua, NH. The police told him he would be receiving a summons to go to Court. About six weeks later a mam named SG received a summons to appear in Lawrence District Court to answer to charges of shoplifting and assault and battery. SG knew nothing about this. In fact, SG had never been in the City of Lawrence. Apparently, the male in the store had used SG’s identity as his own.
The real SG retained Attorney Robert Lewin from North Andover. Attorney Lewin took a detailed statement from SG as to where he was on the day and time of the offense and whom he was with. It was clear that SG had a solid alibi defense. Attorney Lewin filed the appropriate discovery motions to force Market Basket to produce the store security videos from the date and time of the alleged offense. The videos clearly showed the real offender and it was clear that it was not SG. When SG and his parents saw the video they immediately recognized who the real offender was – it was a cousin of SG’s (who would have known his date of birth). The cousin is a heroin addict so his behavior in the Market Basket was not a surprise.
INDECENT ASSAULT & BATTERY: NOT GUILTY VERDICT BY JURY IN 18 MINUTES
On Thursday, January 7, 2016 a Salem District Court jury found KU, a former Salem State University freshman, not guilty of Indecent Assault & Battery and Assault & Battery after deliberating for only 18 minutes. The case went back to May of 2014. KU (then a 19 year old male student) and NN (then a 19 year old female student) were both freshman at Salem State. They lived in the same dormitory. On Thursday, May 1, 2014 they went to a concert on the campus and then headed back to the dorm. NN invited KU to her room. He accepted the invite. Once in the room NN put on her television and got out a bottle of vodka and made a drink for herself and for KU. The two sat on NN’s bed and talked and watched TV. They were together in the room for several hours. After that her version of what happened and his version of what happened were very different. In a statement NN gave to the campus police she told the police that KU tried to kiss her and she told him she was not interested. She then told the police that KU said he wanted to f–k her and then he pushed her down on the bed and tried removing her bra and pants (without success). NN told the police that KU grabbed and slapped her buttocks and groped her breasts. The campus police called in KU. He told the police that yes he was in the room and yes he tried to kiss her but that was all that happened. He denied holding her down (the basis of the assault & battery charge) and he denied groping her breasts and touching her buttocks (the basis of the indecent assault & battery charge). The police charged KU with the two offenses.
POSSESSION OF HEROIN CHARGE DIVERTED OUT OF THE CRIMINAL JUSTICE SYSTEM
KC, a 27 year old mechanic from Hampstead, NH, got caught purchasing heroin during a police surveillance operation at a hotel in Andover. He was arrested on Saturday, December 26, 2015 and released to appear in Lawrence District Court for an arraignment on December 29, 2015. KC retained Attorney Robert Lewin to represent him and to appear in Court with him for his arraignment on December 29, 2015. KC’s timing was excellent. KC had no criminal record and is a Veteran. If his arraignment actually took place on December 29, 2015 then a criminal record would be created. It was important to try to avoid an arraignment from taking place.
Attorney Lewin had no less than three approaches to avoiding the arraignment. First, KC, as a Veteran who served in combat, was eligible to have his case diverted out of the criminal justice system under the newly passed Massachusetts Valor Act. Secondly, the Essex County District Attorney’s Office has a drug diversion program for first time drug offenders with no criminal record. Thirdly, Chapter 111E of the Massachusetts General Laws also provides a framework for diversion of drug cases out of the criminal justice system.
26 YEAR OLD WARRANT CANCELLED: LARCENY CHARGE DISMISSED
LN, a 53 year old woman from a metro north suburb, is charged with two counts of Larceny in Concord District Court. She was employed as a cashier at a local pharmacy and is accused of stealing two gift cards from the pharmacy after putting $500 on each of the gift cards. LN has retained Attorney Robert Lewin from North Andover to represent her in Concord District Court. One of the first things Attorney Lewin did was to run her criminal record to make sure there were no surprises on the record. Sure enough, there was a warrant outstanding for LN’s arrest as the result of a default in a Larceny case in Woburn District Court going back to 1989. Attorney Lewin explained to LN that it was important to get the warrant taken care of before LN’s first appearance in Concord District Court, which is scheduled for January 15, 2016. (Attorney Lewin explained to LN that if the warrant in Woburn Court was still outstanding when LN and Attorney Lewin go into Concord District Court that the Judge in Concord District Court could order LN locked up and transported free of charge in the Sheriff’s van to Woburn District Court after spending a night in MCI Framingham.) Attorney Lewin went to Woburn District Court and obtained copies of the papers in the Woburn Court Case.
RESISTING ARREST CHARGE TO BE DISMISSED
On November 11, 2015 MN, a 44 year old woman living in greater Boston, went to a local bar/restaurant. She sat at the bar for a number of hours and got quite drunk. She got into a verbal argument with a male patron and was asked to leave by the management. After some back and forth she made it out the front door of the restaurant. The police had been summonsed and MN got into a shouting match with the police and with the crowd that had gathered outside the front of the bar. The police moved in to arrest MN for disorderly conduct. MN resisted and a fight broke out between MN and the police. MN, not a small woman, pushed one of the officers so hard that his shoulder was injured. The police finally got MN cuffed and arrested her. She was charged with Disorderly Conduct and Resisting Arrest. One problem for MN is that she works for the Commonwealth in a quasi law enforcement position and a conviction or any type of admission to the charges could have cost her her job – which she has held for 22 years. MN went to Somerville District Court. She was arraigned on the charges and given a date to return to court for a pre-trial hearing.
MN contacted Attorney Robert Lewin of North Andover. Attorney Lewin had successfully represented MN many years earlier in a DUI case. Attorney Lewin reached out to the police. Attorney Lewin then went and spoke (on several occasions) with the Assistant District Attorney handling the case. It was important for MN to avoid a guilty finding and even a continuance without a finding. Attorney Lewin proposed a general continuance of the case (also called pre-trial probation). After much discussion the District Attorney agreed to the case being continued generally for 6 months and then dismissed. On Friday, December 18, 2015 MN and Attorney Lewin appeared in Somerville District Court. Attorney Lewin told the Judge that the parties had agreed to a general continuance for six months. The Judge accepted the agreement and ordered MN’s case continued for six months. The only condition is that MN stay out of trouble. In six months time – provided she stays out of trouble – the case will be dismissed and MN need not appear back in Court.
CHARGE OF 3 YEARS OF ANNOYING SEXUAL PHONE CALLS AVOIDED
BH, a 52 year old male from South Carolina, had been calling a student help line at a Major University in the Boston area for over three years. The calls were persistent and had strong sexual overtones. The calls would come in the hours just after midnight and would involve masturbation and other sexual topics. The university had traced the calls back to BH and had warned him to stop. For a while BH contained himself but then the calls started up again. The University filed an application for a criminal complaint against BH. The Application sought a criminal complaint for annoying phone calls. The calls were numerous and the penalty for each call was up to three months in jail. The University had documented close to one hundred calls. BH was looking at the real possibility of a jail sentence. Immediately upon receiving the notice from the Court BH contacted and retained Attorney Robert Lewin from North Andover.
Attorney Lewin implemented a plan of action. Attorney Lewin told BH he had to immediately enroll in counseling with a licensed psychotherapist with experience in sex offenses. Attorney Lewin told BH it would be imperative for the psychotherapist to furnish a report that BH was in treatment to deal with this specific problem. BH did what Attorney Lewin asked. In the meantime Attorney Lewin contacted the University Detective who had completed the investigation. Attorney Lewin advocated for a result that would avoid an actual criminal complaint from being issued against BH. Attorney Lewin had several conversations with the Detective in the weeks leading up to the Court Clerk-Magistrate Hearing. Attorney Lewin received a written report from the psychotherapist. The report certified that BH was in treatment for the specific problems underlying the annoying phone calls.
OPERATING AFTER SUSPENSION OF LICENSE DISMISSED PRIOR TO ARRAIGNMENT
On July 19, 2015 KC, a 22 year old woman from Lawrence, was driving to work in Lexington when she was pulled over by the State Police. Her Massachusetts Driver’s License had been previously suspended by the Registry of Motor Vehicles because she had accumulated three speeding tickets and because she had failed to pay speeding tickets. Because she had 5 convictions for speeding and because she had two payment defaults, her driver record from the RMV was a mess. The State Trooper cited KC for operating after suspension of license and she subsequently received a summons to go to Concord District Court for an arraignment. KC retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately ran KC’s driver record and obtained a copy of the police report. As always, the devil is in the details.
KC had actually received two notices on the same date (July 9, 2015) from the RMV. One notice was a notice of suspension for having accumulated three speeding tickets which informed her that her license was suspended effective July 19, 2015 (the same date she was stopped by the State Police). The second notice was a notice of INTENT to suspend her license for the same three speeding tickets. The effective date of that suspension was October 7, 2015. Attorney Lewin wanted KC to have her licernse back by the time they went to court for the arraignment. KC needed an additional month to complete her requirements to get reinstated. Attorney Lewin had the date of KC’s arraignment postponed until November 23, 2015. In late October 2015 KC got her license reinstated.