Massachusetts Criminal Lawyer Blog

December 29, 2022

HIT AND RUN CHARGE TO BE DISMISSED

On September 30, 2022 TK was driving his large pick-up truck in Haverhill. He was behind a woman who was talking on her cell phone and driving very slowly. TK got upset with her and began to tailgate her. Finally the woman – who was still on her phone – pulled to the right to let him pass. As he passed her, his truck struck the side of her car. He did not stop. The woman was able to get his license plate and immediately called the police. TK drove to his home in another town. The Haverhill Police had the police in the other town go to TK’s house. There the police spoke to TK. He denied striking the woman’s car. The police examined TK’s truck and did not notice any damage consistent with a collision. The police did notice that the tires on TK’s truck were large and that the truck body was elevated and that it was quite likely that the tires struck the lady’s car. The Haverhill Police then charged TK with leaving the scene of a property damage accident. TK was summonsed to appear in Court for an arraignment.

TK consulted with and retained Attorney Robert Lewin from Andover to represent him. TK absolutely denied that he KNEW that there had been a collision. One of the things that the state must prove in a leaving the scene case (hit and run) is that the offender KNEW that there had been in a collision. In this case it appeared that the tire of TK’s truck had struck the other vehicle. That would lend credibility to TK’s assertion that he did not know that there was a collision.

Attorney Lewin spoke with the Assistant District Attorney (the prosecutor) and explained that TK did not know that there had been a collision. After some negotiating between the Assistant DA and Attorney Lewin, the Assistant DA agreed to continue the case generally for 1 year and then dismiss it. A general continuance of a case is not a plea bargain. With a general continuance there is no guilty plea and no admission of any guilt or wrongdoing. The case is simply left open for a period of time and then dismissed. Attorney Lewin refers to a general continuance as a dismissal that takes a little time to get there.

November 28, 2022

DUI: Know when to hold ’em; Know when to fold ’em

by Robert D. Lewin

Part of good lawyering is knowing when to advise a client not to go to trial. There are just some cases where the facts are terrible and the client has no hope of winning – and both the lawyer and the client know that after trial the client will get a stiff punishment. LS, a 60 year old accountant, had gone to a restaurant/bar for an evening out with friends. Prior to going to the restaurant LS had had several drinks and she brought a plastic bottle in her car with her filled with Vodka. At the restaurant LS had several more drinks. At closing time LS and four of her friends all got in LS’s car and she headed back to drop off the friends. She was driving on a road in Westford, failed to negotiate a turn in the road, struck a utility pole – cutting the pole in half – and then smashed head on into a stone wall. Two of the women in the car were injured and had to be taken to a hospital. The other two women had only minor injuries. LS was not injured. The police, ambulances, and fire trucks all responded to the scene. The police spoke with LS and immediately saw signs of intoxication. Field sobriety tests were administered and she did not do well. The police arrested LS and at the station she blew a .16, which is twice the legal limit. This was her first offense.

LS consulted with and hired Attorney Robert Lewin from Andover. Attorney Lewin fully investigated and fully prepared the case and reviewed all the police reports and witness statements with LS. Attorney Lewin explained to LS all her options in detail. She could fight the case and have a trial or she could work out a plea. The bare minimum penalty for a first offense OUI is a continuance without a finding for 1 year with a 45 day loss of license and completion of the first offender DUI program. That is the typical first offense disposition in a case with no accident and no injuries. When you add in an accident and injuries to two passengers the penalties typically go up. Instead of a continuance without a finding, the DA (and some Judges) sometimes want a guilty finding. Instead of a 45 day loss of license, the DA (and some Judges) want a longer loss of license. And in a case with bad injuries the DA and the Judges may want a suspended jail sentence or sometimes a committed jail sentence. Attorney Lewin explained all this to LS. Without hesitation, LS told Attorney Lewin that she wanted to work out a plea in the case. LS made it very clear to Attorney Lewin that she did not want to go to trial.

Attorney Lewin contacted LS’s insurance company to make certain that all the injuries to people (the two injured passengers) and damage to property (the utility pole and the stone wall) would be paid for by the insurance company. This helps in negotiations with the DA. Attorney Lewin then met with the Assistant DA and gave the DA background information about LS.

November 27, 2022

Another Harassment Prevention Order Beaten

by Robert D. Lewin

BP is a contractor who builds expensive houses. He entered into a contract to build a house for JW, a wealthy businessman. Three days before the sale was to take place there was a fire in the house. A dispute arose between BP and JW about what to do. JW filed a civil lawsuit against BP to force BP to rebuild the house and finish the sale. The lawsuit was not going well for JW. JW then filed for and obtained an emergency Harassment Prevention Order against BP. The order had a court hearing date of November 17, 2022 in Dedham District Court. JW claimed that on three occasions BP threatened him and on one of those occasions BP tried to run JW over with his truck. BP had a lawyer from a large Worcester-Boston law firm who was representing BP in the civil lawsuit. That lawyer referred BP to Attorney Robert Lewin of Andover to handle the Harassment Prevention Order case. BP met with Attorney Robert Lewin (over zoom) and hired Attorney Lewin.

Attorney Lewin thoroughly prepared the case. There were witnesses present during two of the three incidents. Attorney Lewin interviewed those witnesses and had them present at the court hearing. In addition, BP had taken a number of photos of JW; the photos were helpful because they showed JW following BP throughout the Town of Wellesley. In reality, those photos showed that JW was NOT in fear of BP.

Attorney Lewin prepared a lengthy Memorandum of Law for the Judge. On November 17, 2022 Attorney Lewin, BP, BP’s two witnesses, and JW and his lawyer appeared in Dedham District Court for the hearing. The Judge had read all the court papers including the Memorandum that Attorney Lewin had prepared. The hearing (really a trial) lasted 2 1/2 hours. Attorney Lewin had BP and his two witnesses testify and introduced into evidence the photos that BP had taken. At the end of the hearing the Judge ruled that JW had not met his burden of proof. The Judge vacated (terminated) the order forthwith (immediately).

November 27, 2022

Another Harassment Prevention Order Beaten

by Robert D. Lewin

TL, a police officer at a nearby university, lived in a second floor condo with his girlfriend in North Andover. A woman with a young child lived above TL in her own condo. TL worked nights and slept during a portion of the day. The noise coming from upstairs was extremely bothersome to TL. According to the upstairs neighbor TL would bang on the walls and yell profanity upstairs for the noise to stop. This yelling and banging, according to the upstairs tenant, went on for months and frightened the tenant. On October 16, 2022 the upstairs tenant came down to the second floor and knocked on TL’s door. TL answered the door and an argument ensued. According to the upstairs tenant, TL grabbed her by the neck and shoved her up against the wall. TL’s girlfriend separated them. The upstairs tenant went back upstairs and called the police. The tenant was granted an emergency Harassment Prevention Order with a court date of October 31, 2022. TL sought out a lawyer and met with and hired Attorney Robert Lewin from Andover.

Attorney Lewin immediately spotted a big hole in the Harassment Prevention Order case against TL. The law requires that there be 3 or more separate events of harassment before an order can be granted. In her Affidavit the tenant wrote a great deal about the alleged assault on October 16, 2022. She described other incidents where TL had yelled from his unit and has used profanity. Attorney Lewin had prepared and filed a Memorandum for the Judge to read. In his Memorandum Attorney Lewin stressed the requirement that there be THREE separate acts of willful and malicious conduct.

On October 31, 2022 Attorney Lewin, TL, TL’s girlfriend, and the upstairs tenant all appeared in Lawrence District Court for the hearing on whether or not the Harassment Prevention Order should be extended. The Judge immediately picked up on the issue that Attorney Lewin had raised in his Memorandum and the Judge questioned the tenant about any incidents other than the alleged assault on October 16, 2022.

November 16, 2022

Abuse Prevention Order Defeated

by Robert D. Lewin

JS, a 49 year old businessman from Essex County, was in a romantic dating relationship with CW, a 39 year old businesswoman also from Essex County. They began dating in 2015. In 2016 CW accused JS of Assault by means of a Dangerous Weapon, two counts of Assault & Battery, and one count of Grand Larceny. At that time JS consulted with and hired Attorney Robert Lewin from Andover to defend him against those charges. Attorney Lewin fully prepared that case for trial and on December 13, 2016 the case was called for trial. CW failed to appear and all the charges against JS were dismissed. Foolishly, JS took up again with CW and CW (and her young daughter) moved into JS’s house. For the next four years JS and CW lived together (with CW’s daughter). JS’s two sons (with whom he shared custody with his ex-wife) also spent a great deal of time at the house.

In April 2022, JS and CW broke up. On November 4, 2022 CW went into Newburyport District Court and obtained an ex-parte Abuse Prevention Order against JS. (An ex-parte order is an order that is granted by a judge after hearing only from the person seeking the order.) The order was served by the police on JS and had a hearing date of November 14, 2022. JS immediately called Attorney Robert Lewin and again hired Attorney Lewin to defend him against this Abuse Prevention Order.

JS was a terrific client and furnished Attorney Lewin with several years worth of emails and text messages and photographs that showed that CW was never afraid of JS and that they had had a loving relationship. She claimed in her application for the Abuse Prevention Order that he abused her over the years and that she lived in fear on him. The EVIDENCE showed that her claims were untrue.

November 16, 2022

Open Container Violation – NOT Responsible

by Robert D. Lewin

On September 3, 2022 NB, a 19 year old college student from Lawrence, drove to the Wendy’s at the Loop in Methuen. It was close to 11:00 pm at night and there was a large gathering of young people in front of the theatre. NB was going a little too fast for the liking of the police and he got pulled over. When he put the window down the police spotted an open can of beer in the center console next to NB. The police ordered NB out of the car. A series of field sobriety tests was administered to NB and he passed them with flying colors. He had had nothing to drink. The police cited him for the open container violation. NB requested a hearing.

NB (and his father) consulted with and hired Attorney Robert Lewin from Andover. It turns out that NB’s father had been working on the car and had put an open beer in the cup holder while he was working on the car. When he finished working on the car he left the can of beer in the cup holder. When NB took the car later that night to go to Wendy’s he did not notice the can.

On November 15, 2022, NB and his father and Attorney Lewin appeared at Lawrence District Court for the Clerk-Magistrate Hearing. The police prosecutor from Methuen was present at the hearing. The police prosecutor read the citation but had no other report from which he could recite the facts as to what actually happened. When the Police Prosecutor was done the Clerk-Magistrate looked at Attorney Lewin and asked what if anything he had to say. Attorney Lewin smiled and said to the prosecutor “I know when to keep my mouth shut. The police did not present any narrative or evidence as to what had happened; therefore NB is entitled to be found NOT Responsible.” The Clerk-Magistrate then turned to NB and said to him: “Today is your lucky day. I find you NOT Responsible.” NB and his Dad left the courthouse thrilled.

November 15, 2022

Tinted Window – NOT Responsible

by Robert D. Lewin

On August 18, 2020, EA, a 23 year old metal polisher, was pulled over by the state police in Methuen. His front driver side and passenger side windows appeared too dark for the trooper. The trooper got out his measuring device and measured the amount of tint. The trooper cited EA for excessive tint. EA requested a hearing. EA had previously retained Attorney Robert Lewin from Andover for a hit and run charge which Attorney Lewin successfully defended. EA again consulted with and hired Attorney Lewin to defend against this charge.

On November 15, 2022, Attorney Lewin and EA appeared at Lawrence District Court for a clerk-magistrate hearing. The State Police were present. The Trooper testified that he measured the tint on the windows with his device and the tint was 23%. Attorney Lewin asked the Trooper one question. What is the legal limit for a lawful tint? The Trooper looked at Attorney Lewin and at the Clerk-Magistrate; the Trooper smiled; and then said “I don’t know!!” Attorney Lewin turned to the Clerk-Magistrate and before Attorney Lewin could ask for a not responsible finding the Clerk-Magistrate marked the court papers NOT responsible.

The case was simple enough; but it shows that Attorney Lewin was on his toes and picked up immediately on the missing piece in the case. EA who has a lengthy record and who needed to beat this ticket to get his license back was thrilled. (EA’s case was the first of two Motor Vehicle Clerk Hearings that Attorney Lewin had on November 15, 2022 both of which Attorney Lewin won.)

October 17, 2022

HIT AND RUN PERSONAL INJURY CHARGE AVOIDED

by Robert D. Lewin

On September 17, 2021 LP, a 70 year old woman, was driving in Medfield. She came to an intersection and stopped. There was a pedestrian cross walk in front of her. She looked to her right and saw two girls standing on the sidewalk. According to the Medfield Police Department report the girls stated they were waiting at the crosswalk to go across the street. The girls stated LP’s car was stopped at the crosswalk and the driver waived the girls to go ahead to cross the street. The girls stated that as they walked in front of the car they heard the engine start up and the car pulled ahead, striking one of the girls so that she fell onto the hood of the car. The girls then said the driver shrugged her shoulders and drove away. The girls got the plate number of the car.

The police located the car just down the street; it was parked. LP was in the driver’s seat. LP told the police that she did not strike either of the girls. LP said she saw the girls to her right and they were just standing there. LP looked to her left to see if she could pull into the traffic. LP wanted to make a right turn at the intersection. A truck driver approaching from her left waived LP out. LP then proceeded ahead. LP then saw one of the girls in front of her car and immediately hit the brake. LP denied striking the girl.

The police gave LP a citation for leaving the scene after causing personal injury. LP had a relationship with a large Boston Law firm that was doing some civil law work for her. The firm referred LP to Attorney Robert Lewin of Andover. LP consulted with and hired Attorney Lewin. Attorney Lewin immediately advised LP to take the citation and request a clerk-magistrate hearing at Dedham District Court. LP did that. Attorney Lewin then contacted LP’s insurance company to see if any personal injury claim had been filed against LP by the girl who claimed to have been hit by LP. Attorney Lewin learned from her insurance company that no claim had been filed. Attorney Lewin also immediately obtained the police reports. Attorney Lewin investigated to see if there were any video cameras that may have captured this incident; there were not.

October 4, 2022

Failure To Register As A Sex Offender Charge To Be Dismissed

by Robert D. Lewin

In 1987 SN was convicted in NH of Aggravated Sexual Assault of a Minor. He was given probation. In 1999 he was convicted again of aggravated sexual assault of a minor and was sentenced to 9-18 years in NH State Prison. He served his time, was paroled, and successfully completed his parole. He was living in NH and was fully registered under the NH Sex Offender Registration Law. SN’s wife founded and opened a church in Massachusetts in a town in Essex County. SN would come down from NH to preach at the church on Sundays. He did this on a volunteer basis without any pay. A private citizen did some research on SN and discovered that he was a convicted sex offender in NH. In July of 2022 she notified the local police.

The local police confirmed his two convictions in NH for sex offenses and they confirmed that he was registered as a sex offender in NH. They confirmed with the Massachusetts SORB (Sex Offender Registry Board) that he was not registered in Massachusetts. Massachusetts Law requires that if you live in MA or if you are employed in MA or if you go to school on MA and if you are a convicted sex offender (in any state) then you must register in MA. The police called SN in for an interrogation. The police asked about his position at the church. He said he was a pastor at the church and came down on Sundays to preach – something he enjoyed doing and for which he received no compensation. The police charged SN with Failing to Register in Haverhill District Court.

The statute reads as follows: ” ..a sex offender residing or working in the commonwealth or working at or attending an institution of higher learning in the commonwealth, shall … register”. The legal question raised in SN’s case is: :Does doing volunteer preaching without pay constitute working? At first blush, most people would say that in order to be considered “working” one must get paid. The Sex Offender Registration Statute, however, and the Code of Massachusetts Regulations defines work as “employment … whether compensated or uncompensated“.

September 27, 2022

OPEN AND GROSS LEWDNESS CHARGE DISMISSED

by Robert D. Lewin

You could not make this one up. On April 10, 2022 a husband and wife were driving a large tractor trailer truck south on I-495 in Haverhill. The wife was driving and her husband was sitting next to her. The wife noticed a car pull along side the truck on the driver’s side. The wife looked over and saw what appeared to be a woman, wearing a skirt, touching herself over her skirt and her breasts were fully exposed. The woman told her husband and her husband got out his cell phone and took a video of the woman fondling her breasts and touching herself over her skirt. The car ultimately passed the truck and the husband got a photo of the car and its license plate. The couple called the state police and told the police what happened and gave the police the plate number of the car. The State Police ran the plate and discovered the car was registered in Haverhill. The police went to the Haverhill address and the car was there and the engine was still warm. The police knocked on the door and MN came to the door. MN was a 44 year old male. The police asked MN if he was alone. He said yes. The police asked if there was a woman in the house. He said no. The police asked if anyone had driven his car that night and MN said no. The police asked MN if he had driven the car earlier and he said yes. The police left.

Shortly thereafter the husband and wife who had been in the truck sent to the State Police the video that they had taken. The police obtained a criminal complaint against MN for open and gross lewdness in Haverhill District Court. MN consulted with and retained Attorney Robert Lewin from Andover, MA. Attorney Lewin has an enviable record of successfully defending all types of sex offenses.

On August 3, 2022 MN was arraigned. Following his arraignment Attorney Lewin prepared and filed a Motion to Dismiss the case. In order to prove the crime of Open & Gross Lewdness the first element of the crime that the state must prove is that the accused “exposed his or her, genitals, buttocks, or female breasts” to one or more persons. That is exactly what the law requires the state to prove as the first element of the crime. In this case, however, there was NO evidence that MN exposed his genitals. There was NO evidence that MN exposed his buttocks. Male breasts are not included, only female breasts. A female is generally defined as “the sex which conceives and give birth to young”. MN is a male and has no ability to either conceive or give birth to young. Attorney Lewin set this all out in his Motion to Dismiss the case.