Massachusetts Criminal Lawyer BlogKG, the owner of a large construction company on Nantucket, is a giving man. He built a beautiful home for his sister and installed a large sea-shell covered driveway for her. The home and property was worth hundreds of thousands of dollars, but KG did not ask for any payment in return. He had only one request: to store their brother’s 1982 vintage Chevy pickup truck in the garage. Their brother was killed when he was just 18 years old and had completely restored the pickup. KG had kept the pickup truck for more than a decade as a keepsake. The truck had tremendous emotional value to KG. KG’s sister agreed. Soon after KG completed construction of the house for his sister, KG’s niece and her husband convinced KG’s sister to sign the house over to them for “estate planning purposes”. The niece and nephew quickly moved into the house and treated it as their own. KG was very upset, as he had built the house for his sister, not them. Then, one day, KG was driving by the house when he noticed that his niece and nephew had put his brother’s car outside and left it out in the rain with the windows open. KG was enraged. He went back to his construction warehouse, got into a bulldozer and drove to the house. When he got there, he began digging the shells off the driveway. The niece and nephew came running outside, with a friend, and tried to stop him. Their friend tried to stop KG as well. Not a good idea. KG drove the bulldozer at the friend and almost ran him over. Unbeknownst to KG, the friend was an off-duty Massachusetts State Trooper. The Trooper pulled his badge and tried to get KG to stop. KG again drove the bulldozer at him. After digging up the entire driveway and leaving a huge pile of shells blocking the entrance to the house, KG drove the bulldozer back the construction yard, only to be met by police officers. KG was charged criminally and the State Trooper reported the incident to the Registry of Motor Vehicles. The Registry revoked KG’s driver’s license upon determining that he posed a immediate threat to the public. The law allows the RMV to revoke a person’s license or right to operate if the RMV determines that the person poses an “immediate threat” to the lives or safety of the public. It is often used in cases where a person uses a motor vehicle to assault someone or to intentionally destroy property. We also see an “immediate threat” used by the RMV to revoke the driving privileges of elderly persons who in the eyes of the RMV are not competent or fit to drive.The revocation was permanent and meant that KG could no longer work without having to hire a full-time driver. It also meant that he could no longer take his kids to and from school or do any of his normal activities. It was disastrous. KG retained attorney Joshua Lewin to challenge his immediate threat license revocation. Attorney Lewin prepared the case and represented KG at a hearing at the RMV. Attorney Lewin presented a compelling case to a hearing officer. After the hearing, the Hearing Officer reinstated his license. KG returned to Nantucket – driving himself all the way home from Boston.
TWO POUNDS OF WEED – CASE DISMISSED
AO, a 22 year old entrepreneur, was on probation for possession with intent to distribute marijuana. With three months left on his two year probation, AO helped a college friend move from one apartment to another. AO used his car to help shuttle the friend’s boxes and suitcases from the old apartment to the new apartment. After the last trip, the friend took his remaining belongings from AO’s trunk, thanked AO for the help and went on his way. Or so AO thought. AO ran some errands and was heading back to his house in Watertown. When he was just 3 blocks from his home in Watertown, a State Police officer pulled him over for speeding. The State Police officer believed that he smelled the odor of burnt marijuana from within the vehicle and ordered AO to get out of the car. The State Trooper searched the car and then the trunk. There was a cardboard box mixed with some of AO’s belongings in the trunk. AO’s friend had left the box in the trunk. The State Trooper asked what was in the box and AO explained that the box was not his. The State Trooper was undeterred and opened the box. The box contained two pounds of high quality marijuana. The State Trooper filed an application for criminal complaint charging AO with possession with intent to distribute marijuana. Because AO was already on probation for the same thing, he faced not only two years on the new charge but also revocation of his probation and a jail sentence up to two years in the old case. In June 2011, AO was summoned to the Waltham District Court for a show cause hearing (sometimes called a Clerk-Magistrate’s Hearing) before a Clerk-Magistrate. The stakes were high, as AO could have been sentenced to two years in jail on each of the two cases if the Clerk-Magistrate issued a criminal complaint. AO retained Attorney Joshua Lewin. Attorney Lewin thoroughly prepared the case for the hearing before the Clerk-Magistrate and made a persuasive presentation at the hearing. After the hearing, the Clerk-Magistrate dismissed the application and did not issue a complaint. Once the new charge was dismissed probation chose not to go forward with a probation surrender. AO walked on both cases and could not have been more thankful for Attorney Lewin’s services.
DOMESTIC ASSAULT AND BATTERY DISMISSED
SM, a 26 year old male bookkeeper, was charged in Malden Court with assault and battery on his girlfriend on March 1, 2011. The allegation arose from a fight that he and she allegedly had; she claimed in her affidavit for an abuse prevention order that he had pushed her up against a railing and grabbed her around the throat, choking her. She also claimed that he had banged her face into a door leaving her with swelling on her forehead for which she went to the hospital. SM had two prior domestic assault and battery charges on his record and four prior abuse prevention orders that had been taken out against him by four different women over an eight year period. The Middlesex County D.A.’s Office did not want to let go of this case. SM retained Attorney Robert Lewin. The police reports were reviewed along with the girlfriend’s affidavit; the reports and the affidavit did not add up. Ultimately the girlfriend told Attorney Lewin that SM had not assaulted her and that she had lied. Attorney Lewin put the girlfriend into contact with the Assistant D.A. The D.A.’s Office ultimately agreed to dismiss the charge against SM. On May 17, 2011 SM appeared in Malden Court. Attorney Lewin pressed for the dismissal to enter prior to SM’s arraignment. The significance of the dismissal entering prior to arraignment is that the charge does not go onto SM’s criminal record. Once the arraignment takes place a criminal record is created. As a result of this case not going onto SM’s record he will be eligible in May of 2012 to have his remaining criminal record sealed. SM and his girlfriend walked out of court arm in arm – go figure.
KIDNAPPING/ASSAULT & BATTERY DANGEROUS WEAPON GETS PROBATION
On a warm night in April 2010 CL, a 48 year old businessman, took his then girl friend (ZM) to the beach to go fishing on Martha’s Vineyard. They were both drinking and an argument broke out between them. CL struck ZM several times and then placed her in his truck and began driving. She tried to get out of the truck but he held her in. They arrived at his house (on the Vineyard) and he brought her inside. The fight continued. He punched her about the head, face, and arms and then took her head and banged it into the glass covering the fireplace. CL then ran from the house, got in his truck and drove away. When ZM came to she called a friend who came and got her and took her to the hospital. Pictures were taken of her face and arms. They were bloody and bruised. The police were called. A warrant was issued for CL’s arrest for Attempted Murder, Kidnapping, Assault & Battery with a Dangerous Weapon, 3 counts of Assault and Battery, and one count of Intimidation of a Witness. CL left the Island and and contacted his busness attorneys who referred him to Attorney Robert Lewin. CL met with Attorney Lewin on a Sunday and retained Attorney Lewin. Attorney Lewin contacted the local police department on Martha’s Vineyard and then contacted the Assistant District Attorney assigned to the case. At first the DA’s Office was reluctant to discuss bail and took the position they wanted CL held without bail. After some negotiations a surrender agreement was reached that if CL appeared at Court the DA would agree to a $15,000 cash bail. Attorney Lewin and CL took the ferry across to Martha’s Vineyard and appeared in Edgartown District Court. CL was arraigned and released on $15,000 cash bail. An investigator was retained to look into ZM. Subsequently, the case was presented to the Grand Jury and CL was indicted for Kidnapping, Assault and Battery with a Dangerous Weapon, three counts of Assault and Battery, and one count of Intimidation of a Witness. The Grand Jury declined to indict on the Attempted Murder charge.CL’s wish was to stay out of prison. The case proceeded through court and in February of 2011 the parrties appeared in court to set a trial date. On that February date a major break occurred in the case. When CL appeared in Court, ZM was also in court. However, she was not there to watch the proceedings. She herself was under arrest. She was in cuffs and leg irons. She had been picked up on a detainer (warrant) that had been issued by the Feds for immigration violations. The Judge in Edgartown ordered her held for the Immigration and Customs Enforcement (ICE) agrents to pick her up, which they did. She was brought to Boston. Unfortunately for CL, the DA’s Office does have a “special relationship” with the ICE agents where they can get a person held in ICE custody brought to the Court to testify in a criminal case. Nevertheless, Attorney Lewin saw this as an opportunity to press the DA’s Office for a probationary dispositon of the charges. The DA’s Office balked. During the year that the case had been going through the Court the DA’s Office had always wanted a State Prison sentence. Now they were asking for a 2 year sentence to the House of Correction. CL did not want to go to trial but he was unwilling to plead to jail time. The negotiations continued and finally the DA’s Office agreed to a suspended sentence with Probation. On April 21, 2011 CL and Attorney Lewin appeared in Edgartown Superior Court and CL plead to the charges and received a 2 year suspended sentence with a three year term of Probation, concurrent on all the charges. His conditions of Probation include drug and alcohol counseling and completion of a batterers program. Wins come in all shapes and sizes. CL was so relieved not to be going to prison. A suspended sentence is a sentence that is imposed, but execution of the sentence is suspended for a period of time. If the probationer stays out of trouble during the period of the probation then the probation is terminated and the case is closed and the probationer never serves a day in jail. If the probationer violates any term of the probation then the probationer can be brought back to court, the probation revoked, and the suspended sentence put into effect. CL has to keep his nose clean for the next three years. CL had a choice: he could have rolled the dice and gone to trial. If the DA had been unable to get ZM to court the case would most likely have been dismissed. If the DA was successful in getting ZM to Court then a plea on the date of trial would have yielded a State Prison sentence most likely. If the case had gone ahead to trial the evidence against CL was strong and the likelihood is that he would have been convicted and given a substantial State Priosn sentence. Once the suspended sentence with probation was put on the table CL decided to take the plea, take the probation, and be done with it. In the circumstances this was a wise decision.
DOMESTIC ASSAULT AND BATTERY CASE TO BE DISMISSED
GD, a 33 year old British Citizen, lives with his wife and seven year old son in Middlesex County Massachusetts. None of them are US Citizens and he is here on a work visa. GD got into an argument/fight (depending upon whose version you believe) with his wife and the police were called to the house. The police separated GD and his wife.The wife told the police that GD had “pushed her to the floor” and had slapped the seven year old. The police arrested GD and he was charged in Ayer District Court with Assault and Battery on his wife and Intimidation of a Witness. The Domestic Violence Unit in the D.A.’s Office had reviewed the case and had “taken an interest” in the case. They wanted the case prosecuted and wanted a guilty finding on the Assault and Battery Charge. GD retained Attorney Robert Lewin. There are many tools available in this type of case and they were all used here. Because GD was a British Citizen and because he traveled outside the US often any type of probation was unacceptable as he might not be permitted to reenter the US the next time he left. Attorney Lewin spoke with Mrs. D (GD’s wife) and she agreed to exercise her marital privilege and not testify against her husband. Attorney Lewin also prepared and had Mrs. D sign an Accord and Satisfaction wherein she asked that the charges against her husband be dismissed. Massachusetts Law allows a Judge to dismiss an Assault and Battrey case if the “victim” comes before the Court and “acknowledges satisfaction” for her injuries. The Judge is not required to dismiss the case but has the discretion to dismiss the case. Attorney Lewin also prepared a Motion to Exclude the statements made by Mrs. D to the police on hearsay grounds. On April 14, 2011 the case was called for trial in Ayer District Court. The DA was going to proceed without the direct testimony of Mrs. D. The DA was going to attempt to get into evidence Mrs. D’s statements to the police. The Judge reviewed the Accord and Satisfaction but exercised his discretion not to dismiss the case. The DA suggested a continuance without a finding; Attorney Lewin said that was unacceptable as GD denied hitting or pushing his wife and he would not admit guilt to anything. The Judge suggested a one year term of “pre-trial probation”. Attorney Lewin said that this too was unacceptable as it may create immigration consequences for GD. Attorney Lewin said that the defense would agree to a general continuance of the case for six months – without any pre-trial probation – with the understanding that the case would be dismissed at the end of the six months. The Assistant DA in Ayer District Court had to call her superiors in the Domestic Violence Unit to get authority to agree to the general continuance of the case. The DA’s Office agreed and the case was continued generally to October 14, 2011 on which date it will be dismissed. There is NO probation and there are no immigration consequences to GD.
This case could serve as a law school text book case for issues in a domestic assault and battery case:
- Use of an Accord and Satisfaction to seek a dismissal of the charge.
FLORIDA RESIDENT WITH MASSACHUSETTS PROBATION VIOLATION
In 1992, JB pled guilty to possession of cocaine and heroin in the Lowell District Court. He was sentenced to one year in the House of Correction, but the Judge suspended the jail sentence for one year. This meant that JB would never see the inside of a jail cell so long as he complied with the terms of his probation for one year. During his third month of probation, however, JB left snowy Massachusetts and moved to sunny Florida without getting the approval of his probation officer or the Judge. The Probation Department at Lowell District Court issued a Notice of Surrender for Alleged Violation of Probation and the Court issued an arrest warrant in 1993 for JB. JB never returned, instead establishing himself and a career in Florida. After 17 years living in Florida, however, the law caught up to JB. While attempting to renew his driver’s license, the State of Florida informed him that he had an outstanding warrant in Massachusetts and that Florida would not renew his driver’s license until the warrant was cleared. JB needed his license to work but was scared that the Judge would send him to jail for one year if he returned to Massachusetts. JB called attorney Joshua Lewin and explained the situation. After discussing the case, JB retained Attorney Lewin. Attorney Lewin promptly went to the Lowell District Court and was able to get the warrant recalled without JB having to be present in Court. As a result, JB was able to renew his license in Florida and he was not without a license for a single day. But that was only half the battle, as JB was still facing a one year jail sentence in Massachusetts. Attorney Lewin spoke to the probation department and court prosecutors about the case. On a snowy April morning, JB returned from Florida to Lowell and appeared in front of the Judge with Attorney Lewin. Attorney Lewin persuaded the Judge that it was not in the interests of Justice to send JB to jail. In fact, Attorney Lewin’s argument was so persuasive that the Judge terminated JB’s case entirely and set him free without any punishment. When he came to Massachusetts, JB was facing a one year jail sentence. The only punishment he got was having to deal with a freak New England spring snow storm. That was punishment he was willing to accept. Oftentimes we are able to get the Judges to terminated probation in these old cases without the client having to return to Massachusetts; every now and then, however, we get a judge who insists that the client return to Massachusetts. This was the case here; but when the client did appear the Judge terminated the probation and discharged the client from any further responsibility in the case.
CONVICTED DRUG OFFENDER GETS LICENSE BACK
JP, who is 47 years old, had been an oil burner technician his entire adult life. His job required not only that he have a license, but also that he have a commercial driver’s license. In 2008, before he hired Lewin and Lewin, JP was convicted of various drug related offenses. As a result, the Registry of Motor Vehicles suspended JP’s driver’s license for five years. Even worse, however, the RMV revoked his commercial driver’s license for life. (Drug convictions in Massachusetts carry with them a suspension/revocation of the convicted person’s driver’s license – even though the drug case may have had nothing to do with driving. If the drug charges are continued without a finding then there is no conviction and no loss of license.) This effectively meant that JP could never return to work and his career as an oil burner technician was over. In February 2011 JP retained Attorney Joshua Lewin. Attorney Lewin promptly filed a petition at the Board of Appeal in Boston, requesting that the Board rescind the lifetime revocation of his CDL and issue JP a license so that he could return to work. On March 9, 2011, Attorney Lewin appeared with JP before the Board of Appeal. The prosecutor from the RMV argued that JP’s license should remain suspended. Attorney Lewin, who had prepared a detailed and persuasive memorandum, argued to the members of the Board that they should reinstate JP’s license and rescind the revocation of his CDL. Two days later, JP received the Board’s decision: Petition allowed. The Board issued JP a license so he could return to work and rescinded the lifetime revocation of his CDL. As JP stated after receiving the decision and getting his license back: “this was the best money I could have spent.” In the background, Attorney Lewin could hear the sound of JP’s truck. JP was back on the road.
RAPE PROBATION VIOLATION SUCCESSFULLY DEFENDED
In 1983, WC – then age 28 – went out on a date with a woman and ended up being accused of Rape. He did not deny the charge and was able to negotiate a plea where he was given a 7-10 year suspended state prison sentence and he was placed on Probation for five years. For four years he was a perfect probationer. At the beginning of his fifth year of probation he simply walked away from the probation and moved to Louisiana. From 1988 to 2011he lived in Louisiana. He started a business and became successful. The business was a custom motorcycle engine shop. On a February day he was in his shop when the US Marshalls showed up with a warrant for his arrest for being a fugitive from justice from the state of Massachusetts. They cuffed him and brought him to a local court in Louisiana where he was held for rendition back to Massachusetts. His friends contacted Attorney Robert Lewin in Massachusetts. WC ultimately waived a hearing in Louisiana and was transported back to Massachusetts. He was brought to Middlesex Superior Court (now in Woburn, MA) and brought before a Magistrate where he was ordered held without bail. He was served with a Notice of Surrender for Alleged Violation of Probation. There was no question that he had violated his probation: he left the state without permisssion; he failed to keep in contact with probation; he failed to report to probation; etc. The Probation Department was asking that his probation be revoked and the 7-10 year state prison sentence be put into effect. Attorney Lewin put together a memorandum for the Judge that included letters from associates in Louisiana, business records, and medical records. The case required some thinking outside the box. Extending his probation did not make sense as that would require that he not leave Massachusetts and that he wear a GPS bracelet. Sending him to prison to serve 7-10 years for a crime that occurred 28 years earlier did not make much sense either. WC’s friends in Louisiana were willing to put together a free WC fund and raised $15,000. Attorney Lewin suggested to the Judge that she find WC in violation of his probation and that she assess $5,000.00 as a court cost penalty and terminate his probation. The Judge liked the idea but thought the money way too short. The horse trading began and when the dust settled on March 22, 2011 the Judge ordered $15,000. WC’s friends wired the $15,000 up to Attorney Lewin who paid it to the Court. WC was brought back before the Judge who ordered his probation TERMINATED and ordered him RELEASED FROM CUSTODY. He was then discharged from the case and the case was closed. WC is back in Louisiana building engines and catching shrimp.
Framingham District Court Warrant Cleared
In 2009, DW, a 58 year old car parts salesman, gave a fellow a check for $1,500 that was worthless. The fellow went to the police and the police took out a criminal complaint against DB for Larceny Over $250, Forgery, and Uttering (all felonies). DB left Massachusetts and moved to Virginia and never received the summons to appear in Framingham District Court. A warrant issued for his arrest. Two years later (in 2011) DW learned of the outstanding warrant and contacted Attorney Robert Lewin. Attorney Lewin spoke to the victim and confirmed that DB made good on the bad check plus interest. Attorney Lewin then contacted the police and the District Attorney’s Office and got the DA’s Office to agree to dismiss all the charges against DB prior to arraignment and without DB having to appear in Court. On April 5, 2011 Attorney Lewin appeared in Framingham District Court on DB’s behalf and the Judge went along and dismissed all the charges prior to arraignment without DB appearing personally. By dismissing the charges prior to arraignment the charges do not go on DB’s criminal record. It is as is it never happened.
CALIFORNIA RESIDENT GETS MASSACHUSETTS WARRANT CLEARED
For RD, a sixty-two year old California real estate broker, life was good until in 2011 the California Department of Motor Vehicles refused to renew his driver’s license because RD’s driving privileges in Massachusetts were suspended. It turns out that in 1983 (yes, 28 years ago) RD was arrested for DUI in Massachusetts. Back in 1983 he went to Westborough District Court (Massachusetts), pleaded guilty, was placed on probation for one year and ordered to complete a first offender drunk driving program. Before beginning the program RD’s then employer moved his job to California. RD “blew off” the probation and the DUI Program and moved to California. RD got a California license and for the next 28 years life was good. Meanwhile RD’s case in Westborough District Court went into default status, a notice of probation violation was issued, a warrant for his arrest issued, and the Massachusetts Registry of Motor Vehicles suspended his driving privileges in Massachusetts. Unfortunately for RD, over the years the computer tracking systems dramatically improved and in March of 2011 the California Department of Motor Vehicles notified RD that he could not renew his California license until he got reinstated in Massachusetts. On Friday, March 4, 2011 RD contacted Attorney Lewin. Attorney Lewin contacted the Westborough District Court and confirmed that RD was in default of his probation and that there was a warrant outstanding against him. The Chief Probation Officer at the Court took the position that RD had “blown off” his probation and therefore they were unwilling to do anything for him unless he returned to Massachusetts. And then Probation’s position was that RD should suffer a 1 year loss of his driving privileges in Massachusetts (the typical penalty in Massachusetts for persons who are either kicked out of the program or fail to attend). This would have meant a one year loss in of license in California. On Saturday, March 5 RD wired a retainer to Attorney Lewin. Over the weekend Attorney Lewin did a one-hour phone conference with RD and gathered all the necessary information from RD so that an effective written and oral presentation could be made to the Judge on Monday and Attorney Lewin prepared a Motion to get the matter cleared up. On Monday afternoon, March 7, 2011 Attorney Lewin appeared in Westborough District Court. The Chief Probation Officer’s position had not softened. After a full hearing on the Motion that Attorney Lewin presented to the Judge, the Judge took the following action: (1) The Judge excused RD’s appearance in Court and allowed Attorney Lewin to appear in his behalf. (2) The Judge removed the default that had entered back in 1983. (3) The Judge ordered the Warrant cancelled. (The cancellation of the warrant is the first required step in getting the driving privileges reinstated.) (4) The Judge found that RD was in violation of his probation because he left the state without permission, because he failed to complete the DUI program, and because he had failed to report to probation. (5) The Judge then reprobated RD and extended his probation for 5 months and ordered that he could now do the First Offender DUI Program in California. (Over the weekend Attorney Lewin had downloaded information on the California First Offender DUI Program and furnished it to the Judge anticipating that the Judge might take that course.) Attorney Lewin left the courthouse late that afternoon and called RD in California. Attorney Lewin told RD that Attorney Lewin still had to go to the Massachusetts Registry of Motor Vehicles to complete the process. On Tuesday morning, March 8, 2011 Attorney Lewin went to the Massachusetts Registry of Motor Vehicles with the Notice of Warrant Cancellation from Westborough District Court. After a hearing the Massachusetts Registry of Motor Vehicles cancelled the suspension of RD’s driving privileges. This information was then entered (electronically) by Masscahusetts into the National Driver Register (NDR) System. Attorney Lewin left the Registry of Motor Vehicles building and called RD in California and told RD to get over to the California Department of Motor Vehicles and get his license. RD told Attorney Lewin “If you were standing in front of me I would give you a big hug!!!!” RD got his California License that same afternoon. Within 48 hours of being hired Attorney Lewin was able to clear up this 28 year old problem.