Clerk Magistrate Hearings

Boston Clerk Magistrate Hearings – Application for Criminal Complaint

Boston Clerk Magistrate Hearing’s Lawyer & Applications for Criminal Complaint

If you received a summons in the mail telling you to appear for a Clerk’s Hearing to determine if a criminal complaint should be issued against you, you have come to the right place.   You should not represent yourself at this critical legal proceeding as it is the first step in the issuance of a criminal prosecution against you. A criminal defense attorney is better equipped to handle the hearing and to get the charges dismissed if possible.

A Clerk’s Hearing or Clerk Magistrate’s hearing in Massachusetts is a “show cause” hearing. The purpose of this type of hearing is to screen out cases that should not result in the issuance of criminal misdemeanor charges. A defendant is entitled to a clerk’s hearing for misdemeanor offenses only (assault & battery, shoplifting, or drug possession) that were not committed in the presence of a police officer. As a rule, police do not have the authority to arrest an individual for misdemeanors not committed in their presence. Instead, the police must apply for a complaint at the local district or municipal court. Exceptions to this rule are crimes such as domestic assault and battery or shoplifting which have by statute become arrestable offenses.  Nevertheless, if a police officer tells you that you will be summonsed to court instead of being arrested, he is sending you a message that the your case might be able to be resolved at the clerk’s hearing.

The Complaint Process

When a Police officer files an application for a criminal complaint with a Clerk Magistrate instead of seeking an arrest warrant, it means the Police believe you committed a crime but want the Clerk to review the facts before issuing a complaint against you, which gives you the opportunity to challenge the facts. For this reason, these hearings are an excellent opportunity to attempt to resolve a case before the Clerk issues the criminal complaint. Too often, under the misconception that they can talk themselves out of trouble, clients will represent themselves at these hearings with unfortunate results. The unrepresented do not realize that the Clerk’s function at this hearing is not to decide guilt or innocence, nor to rule on credibility issues, but rather to issue a criminal complaint if they decide that the police possess sufficient proof that you committed a particular crime.

If you have been summoned to attend a Clerk’s hearing regarding an application for issuance of criminal complaint, don’t incriminate yourself.  Attorney Topazio knows what it takes to stop the criminal process before it stops you.  To evaluate your case, contact us today for a free confidential consultation.

Application for Complaint

Typically a defendant will be called in to a clerk’s hearing via a criminal citation or summons which he or she receives through the mail. The document that the defendant receives will be an “application for complaint”. An application for complaint is applied for instead of arresting and arraigning the defendant on a misdemeanor charge.
A Clerk Magistrate’s hearing is an informal proceeding where the rules of evidence are relaxed. The hearing is conducted before a clerk instead of a judge. The proceedings are not recorded and there is no public record of what transpires in a clerk’s hearing. The clerk’s role is to consider the evidence before him, not to decide guilt or innocence, or to rule on possible defenses or to determine credibility. Before a clerk will issue a criminal complaint he must hear evidence which constitutes that a crime has been committed. Despite this fact, a Clerk’s hearing creates an excellent opportunity to resolve a case before the actual criminal complaint issues.

Why Hire a Criminal Defense Lawyer?

An experienced criminal defense attorney understands the criminal process and knows how the police and clerks evaluate cases. An attorney can identify problems in a criminal charge and focus on them in an attempt to get a complaint dismissed. Being represented by an experienced criminal defense attorney conveys a message to the court that you view the circumstances seriously, that you are mindful of the clerk’s authority to issue criminal complaints and that you are aware that you will receive a criminal record if the complaint against you issues.
Boston Criminal Defense Attorney Steven J. Topazio has found that, depending on the circumstances of each case, most Clerk Magistrates will listen to mitigating facts and will entertain alternative resolutions of cases if the parties can agree. Attorney Topazio has been successful when he negotiates with the police prior to the hearing in working out settlements which are satisfactory not only to the police but to his client.

A resolution of the dispute in turn gives the clerks good cause to dismiss the complaints that could be issued. If the complaint is dismissed you will not be charged or have to appear in court as a criminal defendant and nothing that has transpired during the clerk’s hearing will appear on your criminal record.

Comprehensive Investigation and Case-Building

If you have been called to attend a clerk’s hearing, protect your future and family.  Contact Boston Criminal Defense Attorney Steven J. Topazio for a free confidential consultation.

RECENT CASE DECISIONS

Case dismissed by Magistrate, Criminal Harassment MGL c.265 § 43A(a)

• Steven Topazio wrote this June 25, 2019 at 4:04 pm

The client, a 37-year-old professional, received a summons to appear for a Magistrate Hearing, hired Attorney Topazio to represent him.  The client and the complainant are known to each other and reside in the same housing complex.  Attorney Topazio learned that there was on-going harassment between the parties that has been going on for years.  It was alleged that the client was ordering magazines about guns and weapons and having copies of the Koran sent to the complainant’s home so that she would be placed on a watch list.  The complaint also alleged that the client has tampered with her laundry on multiple occasions and placing animal excrement in her wash to ruin it.  According to statute, whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 21/2 years or by a fine of not more than $1,000, or by both such fine and imprisonment.  Despite the fact that the statute provides a provision that the conduct or acts described in the statute include, but not be limited to, conduct or acts conducted by mail, Attorney Topazio persuaded the Magistrate to dismiss the complaint against his client.

Clerk Magistrate Hearing, Assault and Battery MGL c 265 § 13a, complaint not issued.

• Steven Topazio wrote this June 12, 2019 at 8:10 pm

The client, a 51-year-old security guard, was accused of assault and battery and received a summons to appear in front of a Clerk Magistrate for a hearing to decide whether a criminal complaint should issue.  The client who hired Attorney Topazio, reported that he was out celebrating and became intoxicated.  That in an intoxicated state he himself was assaulted and robbed.  That as part of being robbed, he sustained a head injury and laceration on his head.  According to police, the client entered an MBTA station and punched an inspector who approached the defendant.  At the Magistrate hearing, Attorney Topazio presented a case which characterized his client as being victim of a violent crime who mistakenly believed that he was acting in self-defense.  That his client was vulnerable due to his intoxicated state and out of fear and confusion confused the inspector for one of the people who had just attacked his client.  Attorney Topazio presented the case as one where a person is confronted with the fight-or-flight response which is a stress related physiological reaction that occurs in response to a perceived harmful event, attack, or threat to survival.  The Clerk Magistrate, in balancing the equities, found probable cause to issue the criminal complaint but held process, under the circumstances, with the complainant’s consent.

Complaint Dismissed by Magistrate

• Steven Topazio wrote this October 15, 2018 at 7:35 pm

The client received a summons to appear at a Clerk Magistrate Hearing on an Application for Criminal Complaint alleging that he committed the offense of Assault and Battery on a Household Member in violation to MGL c. 265 § 13M.  The client hired Attorney Topazio who obtained a copy of the police report and discovered that the report was full of inconsistencies and time lapses since the alleged incidents.  Attorney Topazio advised his client to file a complaint against his ex-girlfriend after he learned that the ex-girlfriend attacked his client several times.  At the Clerk Magistrate hearing, both sides advised the Clerk that they would be asserting their Fifth Amendment and would not testify so as to avoid incriminating themselves.  Without any witnesses being willing to testify or provide any information to the Magistrate regarding the allegations for his consideration, both complaints were dismissed.

Assault and Battery Charge Dismissed

• Steven Topazio wrote this October 5, 2018 at 3:32 pm

The client received an application for criminal complaint alleging that he committed an assault and battery in violation of MGL c 265 § 13A after leaving a bar in Quincy.  The client allegedly got into an altercation with another man and struck that person.  After an investigation into the case it was found that the complainant struck the client first.  Although the complainant went to the police and filed a report, the case was resolved at the Magistrate Session after it was determined that the complainant was the initial aggressor and that the complainant failed to cooperate in the hearing.  The complaint was properly denied.

Assault & Battery MGL c 265 § 13A(a), A&B police Officer, Resisting Arrest MGL c 268 § 32B, Clerk Magistrate Hearing on Application for Complaint resulted in all charges being dismissed.

• Steven Topazio wrote this July 29, 2016 at 7:58 pm

The client, a 24 year old Boston University student, received a summons to appear for a Clerk Magistrate hearing, hired Attorney Steven J. Topazio to represent him.  According to a Boston Police report, officers saw a large group gathered around an Asian male who was lying on his back on the sidewalk with several drops of blood on his shirt and bleeding from the mouth. According to the report the victim stated that an unknown male had punched him in the right side of his jaw and fled.  The report indicates that an officer chased the client through several back yards.  At one point the officer came up to a fence and while attempting to climb over it the office alleges that the client shoved the officer back over the fence and the officer fell off.  Attorney Topazio met with police and the complainant in an attempt to negotiate a resolution of the matter.  Attorney Topazio learned that the complainant sought medical treatment at St. Elizabeth’s Hospital and incurred a great deal of out-of-pocket medical expenses.  With the assistance of the police, cooperation of the complainant, Attorney Topazio was able to persuade the Magistrate to dismiss all charges against his client.

Shoplifting M.G.L. c 266 § 120, Trespass M.G.L. c 266 § 30A, Application For Criminal Complaint, All charges dismissed following Clerk Magistrate Hearing.

• Steven Topazio wrote this July 28, 2016 at 10:03 pm

The client, a 20 year old college graduate from North Shore Community College, hired Boston Criminal Defense Lawyer Steven J. Topazio to represent her at a Clerk Magistrate Hearing when she received a summons for shoplifting and trespass in the mail.  According to Peabody Police, the client was in H&M department store at the Peabody Mall when the client was observed on CCTV and by store security selecting various items then walking out of the store without paying for them.  The security officer approached the client outside of the store and when the client was confronted she ran.  The client’s friends were stopped by the store security and identified the client.  Shortly thereafter the Peabody Police contacted the client’s home looking for the client.  The client voluntarily went to the police station and returned some of the stolen merchandise which she admitted taking.  The client had a criminal record for similar offenses out of the Peabody Mall and had also been trespassed by the Mall.  Attorney Topazio appeared with his client at the Clerk Magistrate Hearing and defended his client.  Attorney Topazio admitted that there was probable cause to charge his client but pointed out mitigating circumstances of cooperating with police in arguing that the charges against his client should be dismissed.  Attorney Topazio persuaded the clerk to dismiss all criminal charges.

Traffic Citation, College Student, Unregistered Motor Vehicle MGL c. 90 § 9; Operating with Suspended License MGL c. 90 § 23; All charges dismissed following Clerk Magistrate Hearing.

• Steven Topazio wrote this May 25, 2016 at 5:49 pm

The client, a 22 year old college student, received a criminal citation after a State Trooper stopped the client’s motor vehicle in the Ted William’s Tunnel.  The Trooper ran the client’s license through his mobile data terminal in his cruiser and received information that the client’s registration and driver’s license was suspended and wrote her a criminal citation.  The client maintained that she had no knowledge of the suspension.  Wanting to challenge the charges, the client hired Boston Criminal Attorney Steven J. Topazio.  Attorney Topazio told his client to appeal the citation and she would receive an application for criminal complaint in the mail.  The client received the traffic ticket after she went to the airport to pick up her sister.  Attorney Topazio contacted the registry of motor vehicles and discovered that unpaid excise taxes caused his client’s suspensions.  Attorney Topazio argued to the Magistrate that his client planed on traveling overseas and was anxious to resolve this matter and further corrected her license and registration issues with the RMV and paid all outstanding and required fees.  As a result of providing proof of payment of the outstanding excise tax bill which caused the suspension issue, Attorney Topazio was able to persuade the Magistrate to dismiss the complaint.

Salem District Court

Clerk Magistrate Hearing,

Uninsured Motor Vehicle – MGL c. 90 § 34J

Unregistered Motor Vehicle

The client, a 27 year old consultant, hired Boston Criminal Defense Lawyer Steven J. Topazio after he was summonsed to court for an application for criminal complaint.  Attorney Topazio learned that his client moved to Massachusetts from Illinois, then moved to Virginia where his client changed his auto insurance, then moving back to Massachusetts, but failed to reinsure his motor vehicle in Massachusetts when he was stopped by police.  Attorney Topazio instructed his client to insure his motor vehicle in Massachusetts prior to the scheduled Clerk Magistrate Hearing.  In Massachusetts, it is a crime to operate a motor vehicle without proper insurance. The law states that any individual who operates or permits to be operated a motor vehicle for which insurance has not been provided shall be punished by a fine of not less than $500 (no more than $5,000), or Imprisonment for no more than 1 year in a house of correction, or both.  Any person who is convicted of this crime shall have his license or right to operate a motor vehicle suspended for sixty days by the Registry of Motor Vehicles.  Today Attorney Topazio persuaded the Clerk Magistrate to dismiss the complaint against his client.

Result: Case dismissed and client avoids an entry on his criminal record as well as avoiding a possible license suspension. 

September 12, 2014

Boston Municipal Court Central Division

Application for Criminal Complaint

Clerk Magistrate Hearing

Procuring Alcohol by False Representation to Person Under 21 years of age

College Student

The client, a 21 year old college senior, hired Attorney Steven J. Topazio to represent her after she received an application for criminal complaint hearing in the mail to appear in the Boston Municipal Court.  Police alleged that the client allowed her driver’s license to be used by an individual under the age of 21 to obtain alcohol in a local downtown restaurant.  According to Massachusetts General Laws c. 138, section 34, any person convicted of procuring alcohol to a person under 21 years of age shall be punished by a fine of not more than $2,000 or by imprisonment for not more than one year or both.  At the hearing, Attorney Topazio was able to persuade the Clerk Magistrate to dismiss the complaint against his client.

Result: Case dismissed.

June 05, 2014
Boston Municipal Court South Boston Division

Shoplifting MGL c 266 § 120
Malicious Destruction of Property over $250 MGL c 266 § 127
Application for Criminal Complaint
Clerk Magistrate Hearing

March 26, 2014

Ayer District Court

Leaving the Scene of Property Damage

Clerk Magistrate Hearing

When the client received an application for criminal complaint charging her with leaving the scene of property damage she contacted Boston Criminal Lawyer Steven J. Topazio. According to the police report, the client hit a parked car and ripped off its bumper.  The client left the scene of the accident without making herself known in violation of law. The next day the client was contacted by police who had investigated the matter and when called down to the police station, she admitted to the accident and leaving without making herself known. Attorney Topazio assisted his client in filing a claim with her insurance company so as to cover the cost of damage to both her and the victim’s car. Despite this being the client’s second offense for leaving the scene of property damage, Attorney Topazio persuaded the Clerk to dismiss the charge.

Result: Case dismissed.

February 18, 2014

Woburn District Court

Clerk’s Hearing

Application for Criminal Complaint

Shoplifting M.G.L. c. 266 § 30A

A family of three received a summons for a Magistrate Hearing for shoplifting a designer handbag from a department store and hired Boston Criminal Lawyer Steven J. Topazio to represent them. According to the shop owner, one of the parties was seen carrying wire cutters into the store and the family was later seen removing the security tag from a Michael Kors handbag and hid the handbag in an empty shopping bag and left the store without paying.  Although the police who responded could have arrested the family, he gave them a break and summonsed them to court for a Magistrate hearing.  The parties had a lot to lose in addition to their reputations and employment.  Although the evidence was compelling and supported the issuance of criminal complaints, Attorney Topazio took advantage of the fact that the police didn’t arrest the family, and although acknowledged the wrongdoings, convinced the Magistrate to dismiss all charges.

Result: Case dismissed.

January 16, 2014
South Boston District Court

Assault and Battery MGL c265 § 13A(a)
Application for Criminal Complaint
Clerk Magistrate Hearing