Massachusetts Criminal Lawyer BlogSN, a 60 year old man from Methuen, was arrested and charged with Indecent Assault & Battery on a Child Under 14. The child was his 12 year old niece who complained that he had sexually assaulted her when she was 7 or 8 years old. SN vehemently denied the charge. Indecent Assault and Battery on a Child Under 14 is a felony punishable by up to ten years in the State Prison. A conviction requires Sex Offender Registration for up to life and GPS Monitoring with an electronic bracelet. In pre-trial discovery Attorney Lewin was able to discover a police report wherein it was reported that the child had told her sister that she may have been dreaming. During her SAIN Interview the child denied ever saying to her sister that she may have been dreaming. The sister, who lived in New Hampshire, refused to be interviewed by the defense. Attorney Lewin filed proceedings in Lawrence District Court to force the sister to appear in Lawrence District Court for the trial. Papers were sent to Salem District Court in Salem, NH and a hearing was set for a judge in NH to order the sister to appear in Massachusetts for the trial. The sister then agreed to appear at the trial. On Januray 31, 2011 all the parties appeared in Lawrence District Court and the case was called for trial. Both sides answered ready for trial. The Assistant District Attorney approached Attorney Lewin and offered to reduce the charge to simple Assault and Battery. Simple Assault and Battery is a misdemeanor that does not involve sex offender registration and does not involve GPS Monitoring. The DA offered straight probation on a plea to simple assault and battery. As he was required to do, Attorney Lewin conveyed the offer of the DA to SN. SN, who for weeks had had visions of going to state prison and of having to register as a convicted sex offender and of wearing an ELMO (Electronic Monitoring Device), took the DA’s offer immediately. He tendered what is called an Alford Plea. An Alford Plea is when you plead guilty but do not admit to having committed the crime. The Court accepted the Alford Plea to simple assault and battery and placed SN on straight probation. SN walked out of the Courthouse and went home. The DA blinked first when she offered the reduced plea to Assault and Battery with a sentence of Probation. Some Defendants would have read the offer as a signal that the State’s case was falling apart and would have refused the offer and gone to trial. SN saw that, but decided not to take the risk of going to trial. He blinked and took the plea. These are not easy decisions. We always tell clients “Don’t plead guilty to a crime you did not commit.” Sometimes, however, clients feel compelled to plead when an offer is made that is too good to turn down. That appears to be what SN thought in this case. It is hard to say that he was wrong. A felony conviction – which was certainly possible – meant jail time, sex offender registration, and GPS monitoring. With the plea to a misdemeanor he locked in Probation with no registration and no GPS. What would you have done? Would you have blinked?
College Senior Keeps A Clean Record
On Friday night January 21, 2011 BG, a senior at a local college, went to his school’s hockey game at a rink in Malden. After consuming a few beers he became somewhat rude at the game and was asked to leave. Once outside one thing led to another and BG found himself under arrest for disorderly conduct. BG contacted his father – who happened to be a lawyer – and the father understood the ramifications of his son’s having a criminal record, even for a minor misdemeanor such as disorderly conduct. Attorney Lewin was contacted on Saturday, January 22, 2011. On Sunday Attorney Lewin contacted the Malden Police and began to negotiate a dismissal of the case,prior to the arraignment. The arraignment was scheduled for Monday, January 24, 2011. On Monday morning Attorney Lewin and BG appeared at court; at first the DA was reluctant to dismiss the case prior to arraignment. Eventually Attorney Lewin was able to convince the DA to agree to the dismissal prior to arraignment and the Judge went along with it. The significance of the case being dismissed prior to arraignment is that no entry will be made on BG’s CORI (criminal record). The case will not show up. It is rare for a DA or a Judge to go along with this; however, there is absolutely no harm in asking for the case to be dismissed prior to the arraignment as the worst the DA or the Judge can say is no. Had the case been dismissed after arraignment then the charge would show up on BG’s record and he would then have to explain to every prospective employer who checks his record what the disorderly charge was all about. Now he will be free of that entry on his record; his record is clean.
GPS GOES CRAZY
A convicted rapist is on probation and is required to wear a GPS tracking device. As part of the GPS law he is prohibited from going to certain places; these places are called exclusion zones. On January 3, 2011 he was at home when his probation officer called him and told him that he had violated an exclsuion zone and the police were coming to arrest him. He exlaimed to his probation officer that he had not left the house and had not been anywhere near the exclusion zone (the home of the victim who lives across and down the street). Attorney Lewin called the Probation Officer and insisted that they check the accuracy of the GPS device. It turned out that the GPS device was giving off what are called “floating points”; these are points on the tracking maps that are not accurate. They are false tracking points. In this case the tracking points showed the offender literally walking across a pond. In addition the tracking points showed the offender moving a distance of 100 yards in 2 seconds. On Friday, January 7, 2011 after a full court hearing, the Probation Department admitted that the offender had not violated his GPS restrictions and the probation violation was dropped. The accuracy of the GPS tracking system can and must be called into question in these cases.
OLD MASSACHUSETTS WARRANT CANCELLED
In 1988 CC was arrested in Lowell, MA on drug charges. While CC’s drug case was pending in Court, CC was arrested for being a fugitive from justice on a Warrant for Rape out of Texas. CC was returned to Texas to face the Rape charge and was told that his drug case in MA would be closed. CC was convicted in Texas of the rape and was sentenced to 16 years in Prison to be followed by 50 years of probation with an electronic monitoring bracelet. CC served his 16 years in prison and was released in 2006. He has been on probation in Texas since 2006 and is doing incredibly well. Upon his release from prison he got a job as a janitor and in four years he has become a plant manager. He has absolutely no probation violations. In early November 2010 CC went to renew his Texas Driver’s License but was told he had an outstanding warrant in Massachusetts that was causing his right to operate in Massachusetts to be suspended which in turn was causing his reight to drive in Texas to be placed in nonrenewal status. CC was told he would have to go to MA to get the warrant cleared up. Only problem is that CC cannot leave the State of Texas because he is on Probation for a sex offense. Without the license CC cannot get back and forth to work. On Friday, November 12, 2010 CC retained Attorney Joshua Lewin of Lewin & Lewin. Attorney Lewin went to Lowell District Court that same day and filed the appropriate papers to have CC’s 1988 drug case put on the Court list for Tuesday, November 16, 2010. The drug case was in default warrant status. On November 16, 2010 Attorney Lewin appeared in Lowell District Court; the DA’s Office at first did not want to let go of this 22 year old drug case. After some argument and persuasion the DA agreed to dismiss the case. The Judge ordered the case dismissed and the warrant recalled. Attorney Lewin left the District Court and went to the Registry of Motor Vehicles (RMV) with a copy of the Notice of Warrant Cancellation. Attorney Lewin had a hearing at the RMV and the restriction against CC’s driving privileges was lifted. The next day CC went to the Texas Department of Motor Vehicles and was able to renew his Texas license.
CAR GETS A TAN; DRIVER GETS A PASS
On June 1, 2010, AR was driving her SUV in Chelmsford. She attempted to pull into a parking space at a shopping plaza when suddenly her SUV jumped a curb, crashed through the plate glass window of a tanning salon, and ended up wholly inside the tanning salon. Fortunately for AR no one was hurt or even touched by her car and the flying debris.The police arrived on scene. AR was cited for Reckless Operation. The police reported the accident to the RMV and the RMV immediately suspended her license for “immediate threat”. Under Massachusetts Law when the Registry determines that someone poses an immediate threat to the safety of the public because of their operation of a motor vehicle the RMV can suspend the operator’s license until the operator can satisfy the RMV that they no longer pose a threat. AR retained Attorney Lewin. Attorney Lewin went to the accident scene and photographed the scene. An examination of the car took place but no defects could be found in the car that would explain the sudden acceleration of the car. Attorney Lewin pressed the argument with the District Attorney that what happened was an accident and not the result of any negligence on the part of AR. On Friday, October 29, 2010 AR and Attorney Lewin appeared in Lowell District Court. After some discussion an agreement was reached for a general continuance of the case for three months. That means that the case will simply sit on the court books for three months and then be dismissed. There was no plea bargain; there was no admission of guilt or wrongdoing; AR’s plea of not guilty remains in full force and effect and on January 28, 2011 the criminal charge will be dismissed. AR is now in a position where she can go to the RMV and seek reinstatement of her license.
DON’T PLEAD GUILTY IF YOU DIDN’T DO THE CRIME
KL was married with one child. His wife had many issues including expecting KL to be at her beck and call whenever she wished. The marriage was floundering and KL moved out; she called KL often and demanded that he drop whatever he was doing and come take their child so she could “go out”. When he did not respond promptly enough she called the police and accused KL of assaulting her. The police came and arrested KL and charged him with Assault and Battery on his wife. He was arraigned in Woburn District Court and his case was continued. While that case was pending she called the police a second time and again accused KL of assaulting her. KL was arrested again and brought to Woburn District Court; the DA’s Office sought to have KL’s bail on the first case revoked and have him locked up while the cases were pending. (Right now – October 2010 – it can take 5 months to get a trial date in Woburn District Court.) KL was released on a cash bail which his father put up. KL retained Attorney Lewin. KL insisted he was innocent. As the time for trial drew near KL’s family became concerned about whether or not he should go to trial or perhaps “work out a plea deal”; Attornney Lewin insisted that Kyle not plead guilty but rather go to trial. Attorney Lewin made it clear to KL and his family (and to KL’s wife) that the evidence and the truth were on KL’s side and that KL would never plead guilty. On October 26, 2010 KL’s cases were called for trial in Woburn District Court. Attorney Lewin stood up and in a loud clear voice answered that KL was ready for trial on both cases. KL’s wife refused to testify; both charges were dismissed. Never plead guilty to a crime you did not commit.
BULLYING VICTIM EVENS THE SCORE AND WALKS
GP, an 18 year old from Wilmington, was being picked on and bullied by a fellow who at one time had been his best friend. The bullying reached the point where GP couldn’t take it any more. GP attacked the bully, knocked him down, and allegedly kicked him with a shod foot. GP emphatically denied kicking the boy. A boy who was present videoed the entire episode on his cell phone. The police applied for a criminal complaint against GP for Assault and Battery by Dangerous Weapon, a shod foot, and a hearing before a Clerk-Magistrate was scheduled at Woburn District Court. The crime is a felony in Massachusetts. GP retained Attorney Joshua Lewin. Attorney Lewin immediately contacted the Wilmington Police and then drove to the Wilmington Police Station and obtained a copy of the video. The video was not of the best quality but a careful review ov the video confirmed what GP had been saying that he did NOT kick the bully. With the video in hand Attorney Lewin approached the Police Prosecutor and an agreement was reached that no complaint would issue against GP. On October 26, 2010, GP and Attorney Joshua Lewin appeared at Woburn District Court for the Clerk-Magistrate’s Hearing and no criminal complaint was issued against GP. As a result of the case being prepared without delay prior to the Clerk-Magistrate’s hearing GP was not charged, he did not have to appear in front of a judge, and NO CRIMINAL RECORD was created.
SCHOOL ZONE CHARGES DISMISSED IN DRUG CASE
TM had a favorite restaurant in North Woburn. He would go there often. One day he was approached by an undercover cop in the restaurant; they conversed and TM sold the undercover cop a small quantity of weed. Several days went by and the undercover cop contacted TM again and arranged a second sale which took place in the restaurant parking lot several days later. Several days after that a third sale took place in the parking lot. Unknown to TM all this activity was photographed by other police. Immediately after the third sale TM was arrested in the parking lot. A search of TM’s car revealed a larger quantity of marijhuana and Class C Pills and Class E Pills. In addition there was a pre-school within 1,000 feet of the restaurant parking lot where all the sales had taken place. TM was brought to court charged with three counts of distribution of marijhuana, three counts of a school zone violation (each carrying a 2 year mandatory minimum sentence which cannot be suspended), 1 count of possession of marijhuana with intent to distribute, 1 count of Possession of Class C, and 1 count of Possession of Class E. Attorney Lewin was retained and immediately began working on the school zone issue. The school zone statute is a very technical statute. It covers both public and private pre-schools. The statute, however, requires that the pre-school be accredited. The statute does not set forth who it is that does the accrediting, how long the accreditation lasts, etc. Attorney Lewin attacked this aspect of the case and filed Motions requiring the government to disclose all their evidence on this “accreditation” issue. The government stalled for three months. Finally Attorney Lewin motioned the Court to dismiss the school zone charges. The DA then approached Attorney Lewin about “working the case out”.At the end of the day on Tuesday, October 26, 2010 TM walked out of Woburn Court: the three school zone charges were all dismissed; all the remaining charges were continued without a finding for 18 months. If TM stays out of trouble all the charges will be dismissed at the end of the 18 months. Because no guilty findings were entered, TM will not lose his license.
ANOTHER ALLEGED DOMESTIC ASSAULT DISMISSED
EB, age 36, was arrested and accused of domestic assault and battery on his seventy year old father. EB consistently and emphatically denied that he had struck his father. Following his arraignment EB retained Lewin & Lewin. Attorney Robert Lewin sought out the father and spoke with him. The father came to the pre-trial hearing at Lowell District Court. Attorney Lewin put the father in direct contact with the Assistant District Attorney. The father told the Assistant DA that no assault occurred. The DA’s Office refused to dismiss the case at the pre-trial hearing!! This is the position the Middlesex County DA’s Office takes in virtually every domestic assault and battery case. Attorney Lewin requested a quick trial date. On Wednesday, October 13, 2010 litigation specialist Joshua Lewin from the firm of Lewin and Lewin appeared in Lowell District Court and answered ready for trial. The Commonwealth could not go forward and the case was dismissed.
MASSACHUSETTS SPECIAL DRUG STATUTE
One night in July 2010 RD drove from Vermont to visit a girlfriend in Ipswich; they planned to meet in North Andover. RD arrived first and parked in the parking lot of a convenvient store. The store was closed and it was around one in the morning. The police became suspicious and approached RD to see what his purpose was. One thing lead to another and the police discovered no less than three classes of drugs on RD. He was arrested and charged with Possession of Class A, Class D, and Class E Controlled Substances. RD was arraigned in Lawrence District Court and the case continued. There is a statute in Massachusetts that allows a judge in a drug possession case to “stay” the proceedings; that means the legal prosecution stops. The accused – if he consents- can enter a drug treatment program (which can be out-patient counseling) and, if he successfully completes the counseling, the case can then be dismissed. The Statute is Chapter 111E of the Massachusetts General Laws. In RD’s case Attorney Robert Lewin filed a Motion to Stay the proceedings pursuant to Chapter 111E. After a hearing, the Judge granted the Motion. The criminal proceddings were “stayed” (stopped); RD entered an outpatient drug counseling program and successfully completed the program. Today (October 13, 2010) the Judge in Lawrence District Court, after reviewing the report from the counseling program, ordered the case dismissed. RD is now in a position where he can petition the court to seal his record and that is the next step in getting this case completely removed from RD’s record.