Clerk Magistrate Hearings/Application for Criminal Complaint

Boston Clerk Magistrate Hearing’s Lawyer

Applications for Criminal Complaint

If you have received a summons in the mail telling you to appear for a hearing to determine if a complaint should be issued against you, don't go alone. You should not defend yourself at this 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 Magistrate's hearing in Massachusetts is also known as 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 which have by statute become arrestable offenses.

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 and want the Clerk to issue a complaint against you. 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. Clients 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, Contact Criminal Defense Lawyer Steven J. Topazio to stop the criminal process before it stops you.

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. Mr. 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 by contacting Boston Criminal Defense Attorney Steven J. Topazio for a free consultation.

RECENT CASE DECISIONS

December 28, 2011
Boston Municipal Court
Application for Criminal Complaint

Clerk Magistrate Hearing
Assault & Battery M.G.L. c. 265 § 13A

The client, a 28 year old college graduate employed as a business systems analyst for a Boston Investment Company, received an application for criminal complaint after punching a fellow patron in the face while in Whiskey’s Smokehouse Bar in Boston. Attorney Topazio met with his client and learned that the on duty manager from the bar witnessed the assault and battery and that the client admitted to the police that he punched the victim after he was grabbed from behind by an unidentified person. Attorney Topazio, in an attempt to resolve the matter prior to criminal charges from being issued against his client, (which would also prevent an entry on his client’s board of probation record, commonly referred as BOP or CORI), contacted the investigating Boston Police Detective and explained his client’s position and addressed any concerns the police or victim had to a resolution of the matter at the Magistrate’s hearing. Attorney Topazio further arranged to have the case sent to court sponsored mediation should the Magistrate require as part of any resolution. Today at the hearing on the application for issuance of the criminal complaint, Attorney Topazio was successful in convincing to the Magistrate, with the consent of the applicant, to deny the issuance of the criminal complaint thus preserving his client’s CORI.

Result: Case dismissed.

December 13, 2011
Chelsea District Court
Application for Criminal Complaint

Magistrate’s Hearing
Assault & Battery, MGL c. 265 § 13A

The client, a 49 year old merchant from the City of Chelsea, received an application for criminal complaint which alleged he committed an assault and battery on one of his customers. Attorney Topazio met with his client and obtained a copy of the police report which alleged the client kicked a hand basket the Spanish speaking customer/complainant was holding, which then struck his leg. Attorney Topazio interviewed a Spanish Speaking employee of the client who witnessed the event. The witness indicated that the complainant was the aggressor and confirmed that the client did not kick any hand basket. Attorney Topazio further discovered that prior to the hearing; a complaint was filed against his client with the Massachusetts Commission Against Discrimination, MCAD, which alleged that the client kicked the complainant in the leg, not the hand basket, because the client discriminates against Hispanics. Today, Attorney Topazio had his client’s Hispanic employee come to court to testify at the hearing and argued that the reason for the discrepancy in the two reports was because the complainant had fabricated the assault and battery charge and made the false allegations against his client in an attempt to profit financially from him, and the court agreed.

Result: Case dismissed.

December 01, 2011
Woburn District Court
Docket # 1153AC1085

Application for Criminal Complaint
Unlicensed Operation, MGL c. 90 § 10
Fail to Inspect MGL c. 90 § 20
Unsafe Passing MGL c. 89 § 2

The client, a 37 year old scientist with no prior criminal history, received a citation with both criminal and civil violations when he passed a line of cars in route to a job interview, hired Attorney Topazio to represent him. Attorney Topazio obtained his client’s Curriculum Vitae and registry documentation in anticipation of the court hearing. Attorney Topazio discovered that his client failed to obtain a Massachusetts license when he moved here from Colorado during the beginning of the year after accepting employment with Pfizer, Inc. Despite accepting employment and relocating to Massachusetts, Pfizer unfortunately laid off the client due to the sluggish economy. The client, who became trapped in Massachusetts with his family in search of employment, did not consider himself a permanent resident of Massachusetts which requires that every resident must apply for a driver’s license within 30 days of establishing residency. The client believed his valid Colorado driver’s license was sufficient in Massachusetts since he was seeking employment in several states when he received the criminal citation. At the Magistrate’s hearing, Attorney Topazio established that his client applied for and received his Massachusetts driver’s license and had his car inspected the day after receipt of the citation. Attorney Topazio was successful in convincing the Magistrate to dismiss the criminal violation of unlicensed operation and civil violation of inspection violation, thus preserving his client’s clean criminal record or CORI. The Magistrate only assessed the client $100.00 for the civil violation of unsafe passing.

Result: Criminal complaint dismissed and client preserve’s clean CORI.

November 02, 2011
Framingham Juvenile Court
Docket Intentionally Omitted

Operating to Endanger M.G.L. c. 90 § 24(2)(a)
Marked lane violation

The client, a 16 year old High School Student, received a criminal citation for operating to endanger after he crashed his motor vehicle into a tree after knocking over a mailbox and causing property damage. Attorney Topazio instructed his client to sign the back of the citation and to file it with the court within four days so as to preserve his client’s right to a magistrate’s hearing. Requesting a clerk’s hearing prevents the immediate issuance of a criminal complaint which in turn would also result in his client getting a criminal record. Attorney Topazio had his client obtain a copy of his school grades and documentation of school accomplishments; such as his client’s acceptance into the National Honor Society and Peer Ministry, among other things, in order to establish his client’s good character for the clerk at the upcoming hearing. Attorney Topazio met with the investigating officer in an attempt to negotiate a resolution of the matter and further to resolve any restitution matters. Today at the hearing on the application for issuance of criminal complaint, Attorney Topazio established through his client’s medical records that he was not drinking or consuming illegal drugs prior to the accident. Attorney Topazio also established that his client was not speeding or racing when the accident occurred, but rather established that the accident occurred as the result of his client falling asleep at the wheel. Attorney Topazio was successful in convincing the Magistrate not to issue the criminal complaint, despite the Magistrate’s finding probable cause to believe that a crime had been committed, but rather to hold the complaint open for four months on the condition that his client stay out of trouble and complete a community service project through his peer ministry group at school by writing an article about the dangers and hazards of driving and then presenting it in school.

Result: Formal complaint does not issue and case to be dismissed following completion of community service project.

September 30, 2011

Cambridge District Court

Application for Criminal Complaint

Possession of False Registry of Motor Vehicle Documents c 90 § 24B(c)

Operator Refuse to Identify self c 90 § 25

Identity Fraud c 266 § 37E

The Clients, a 41 year old computer technician, was stopped by police for a civil motor violation, and given a ticket. The client was in possession of his friend’s driver’s license and instead of using his own license, used his friend’s identification. The client paid the ticket in due course and thought the matter was over. Following the payment of the ticket, police learned the client used the wrong license when stopped for the civil motor vehicle infraction, and summonsed him to court regarding an application for criminal complaint alleging identity fraud. Attorney Topazio represented the client at the hearing and tried to reconcile with the Magistrate and police why the client behaved as he did. After a full hearing, Attorney Topazio requested and was granted a continuance to present additional information to the Magistrate regarding the matter. Today, on the return date of the continued hearing, Attorney Topazio made an argument to dismiss the charges against his client, despite adequate information presented for the Magistrate to find probable cause so as to issue the complaints, and was successful in persuading the Magistrate and police prosecutor to dismiss all charges.

Result: Case dismissed.

August 31, 2011
Cambridge District Court

Application for Criminal Complaint
Magistrate’s Hearing/Clerk’s Hearing
Larceny Over $250 by False Pretense c 266 § 34

The client, a web developer and Harvard Graduate School student, was contacted by Cambridge Detectives regarding the returning of merchandise to the store Anthropologie for a cash refund for merchandise that wasn’t purchased from the store, hired Boston Criminal Defense Lawyer Steven J. Topazio to represent him. Attorney Topazio instructed his client not to speak with police but contacted and spoke with the investigating detective himself, so as to prevent his client from making any incriminating statements that could be used against him. Attorney Topazio used this opportunity to attempt a resolution of the case and requested that his client not be arrested or charged for the felony charge of larceny over $250 but represented that his client would be amenable to pay restitution, if the case could be resolved without formal felony charges being filed. A defendant is not entitled to Magistrate’s or Clerk’s hearing for a felony charge, only misdemeanor offenses. The detective acknowledged that he wouldn’t charge and arrest his client but would proceed by way of a Magistrate’s or Clerk’s hearing as Attorney Topazio suggested and further would inquire from the store if a settlement short of formal charges issuing would be an acceptable resolution. Today at the Clerk Magistrate’s hearing, Attorney Topazio negotiated a settlement with the prosecuting detective which required that his client would pay restitution within one week without admitting or acknowledging responsibility and the application for complaint would be dismissed, and the Magistrate agreed. Dismissing the application for complaint prior to issuance of the formal complaint also prevents an entry from appearing on his client’s criminal record (CORI).

Result: Application for criminal complaint dismissed on agreement to pay restitution and client avoids a prosecution for a felony charge and an entry on his CORI.

July 29, 2011
Cambridge District Court
Application for Criminal Complaint

Possessing, using False Motor Vehicle Document c 90 § 24B
Refuse to Identify Self c 90 § 25
Posted U-Turn Violation c 89 § 9

The defendant received an application for issuance of criminal complaint when Belmont Police received information that a citation the officer previously wrote to the defendant, admitted to the Watertown Police Detectives that he was using a false identity. The Watertown Police discovered the true identify while booking the defendant for unrelated charges. The defendant produced a NY driver’s license which identified a second individual when stopped for a U-turn violation by the Belmont Police, and was issued a citation in the false name. After a query to the Massachusetts Registry of Motor Vehicles following the Watertown Police tip, the defendant was found to have a valid Massachusetts driver’s license under his true name, hired Criminal Defense Attorney Steven J. Topazio to defend him. Today, Attorney Topazio persuaded the Assistant Clerk Magistrate to hold the case in lieu of issuing a complaint despite the Magistrate’s finding of probable cause that the defendant used another individual’s identification after he was stopped for a moving violation.

Result: After finding of probable cause, the Clerk Magistrate continues the case in lieu of issuing the complaint.

June 21, 2011
Somerville District Court
Application for Criminal Complaint

Receiving Stolen Property, M.G.L. c. 266 § 30

The defendant, a foreign exchange student, received an application for criminal complaint which alleged she was in receipt of a stolen cell phone, hired Attorney Topazio to represent her. Attorney Topazio obtained the police report which indicated that numerous cell phones from a T-Mobil Store were stolen and that T-Mobil detected usage on a cell phone that was reported stolen and in the name of the defendant. When confronted by the police the defendant told them she bought the cell phone from a person she met. Attorney Topazio appeared at the Clerk’s hearing and provided documentation that his client was in good standing in college as a student in the Accounting Associate Degree Program. Attorney Topazio agreed with the investigating detective to continue the Magistrate’s hearing so that his client his client could meet with the investigating police detective to discuss the case and to provide what information she had on who sold her the cell phone. Although the defendant could not identify who sold her the cell phone, Attorney Topazio convinced the Magistrate to dismiss the complaint at the reconvened magistrate’s hearing. A dismissal of the application for criminal complaint at the Magistrate’s session not only ends the case but insures that the charges would also not appear on his client’s CORI.

Result: Case dismissed and clean CORI preserved.

May 17, 2011
Malden District Court
Application for Criminal Complaint

Assault and Battery, M.G.L. c. 265 § 13A

The defendant, a hotel manager, received an application for criminal complaint which alleged he assaulted and battered his wife, hired Attorney Topazio to represent him. Attorney Topazio obtained the police report which indicated that his client was accused of pushing the alleged victim several times, grabbing her by the neck, and flipping her over in a chair. The report also indicated that the victim attacked his client, digging her nails into his hand causing him to bleed. Attorney Topazio continued the clerks hearing so as to investigate the criminal charges filed against his client’s wife. Attorney Topazio met with opposing counsel and reached an accommodation whereby both parties agreed to invoke their Fifth Amendment right not to testify. Today, although the Magistrate heard sufficient evidence from the police to issue criminal charges against each party, Attorney was successful in convincing the Magistrate to dismiss the charges against his client. A dismissal of the application for criminal complaint at the Magistrate’s session not only ends the case but insures that the charges will not appear on his client’s CORI.

Result: Case dismissed and clean CORI preserved.

April 19, 2011
Boston Municipal Court
Application for Criminal Complaint

Assault and Battery, M.G.L. c. 265 § 13A
Threats, M.G.L. c. 272 § 2

The defendant, a real estate agent, received an application for criminal complaint which alleged she assaulted her sister-in-law and threatened her while at her work, hired Attorney Topazio to represent her. Attorney Topazio obtained the police report which indicated that his client was accused of pushing the alleged victim several times toward a set of stairs yelling and cursing the entire time, threatening to kill the victim and to take the victims child. The report indicated that the victim is separated from her husband (the brother of the client) and is currently negotiating custody of the child. Attorney Topazio met with the investigating police detective to discuss the case and pointed out that the encounter focused on the well being of his client’s infant nephew, where a contested custody battle was raging, and argued that his client was not the aggressor. Attorney Topazio investigated the alleged victim’s propensity for aggression and discovered a history of assaultive behavior and restraining orders against the alleged victim and produced that documentation for the hearing. At the Magistrate’s hearing, Attorney Topazio established that the alleged victim was the aggressor and that her assaultive behavior was cause for the encounter. As a result, Attorney Topazio convinced the Magistrate to dismiss the complaint. A dismissal of the application for criminal complaint at the Magistrate’s session not only ends the case but insures that the charges would also not appear on his client’s CORI.

Result: Case dismissed and clean CORI preserved.

November 22, 2010
Boston Municipal Court
Magistrate Hearing

Application for Criminal Complaint Violation of 209A Restraining Order
Default Warrant

The defendant, who received an application from the court for issuance of a complaint for violating a 209A restraining order, hired Attorney Topazio. The application alleged that the defendant was accused of telephoning his ex-girlfriend from a blocked telephone number in violation of the order. Attorney Topazio met with the prosecuting detective and learned that in addition to the allegations that there was an outstanding default warrant for his client’s arrest on a second case involving the same victim. Today during the Magistrate’s Hearing, Attorney Topazio requested that the hearing be continued so as to give his client time to appear and recall the outstanding default warrant instead of being taken into custody, and the Magistrate and Detective agreed. Attorney Topazio thereafter appeared with his client and recalled the default warrant and requested that the Court release his client on personal recognizance despite the District Attorney’s request for cash bail. The Court agreed.

Result: Warrant recalled and client released on own recognizance in lieu of being held on bail. Hearing on application for issuance of complaint continued for further hearing.

November 16, 2010
Dedham District Court

Magistrate Hearing
Person under 21 Possessing Liquor

The defendant, a senior at Xaverian Brothers High School, was at a house party where the police arrived and found the defendant and others with party amounts of alcohol, received a citation from the court for the issuance of a criminal complaint, hired Attorney Topazio to represent him. Attorney Topazio contacted the prosecuting police officer in an attempt to mediate the matter, pointing out that his client stayed to confront police when they arrived, while others who were present at the party fled and thus avoided prosecution. Attorney Topazio pointed out the inequity of the situation to the officer. A consequence of not fleeing the police resulted in his client now having to deal with the ramifications of a criminal charge and a possible CORI entry if the criminal complaint issued, and the possibility of the denial of Federal financial aid for his client who planned on going to college, while the individuals who fled were rewarded by not having to face the consequences of their actions. Attorney Topazio instructed his client to obtain letters of recommendation to establish his client’s good character and to highlight his leadership qualities in preparation for the hearing. Today, Attorney Topazio, as a result of his experience and understanding the hearing process, persuaded the Clerk Magistrate not to issue the complaint against his client.

Result: After hearing the criminal complaint does not issue resulting in the client maintaining a clean criminal record.

April 07, 2009
Peabody District Court

Application for Criminal Complaint
Utter False Prescription M.G.L. c. 94C, § 33 E

The defendant, a professional person, was accused of altering a written prescription for a prescription medication she was prescribed by her doctor. After refusing to answer questions from police, the client received an Application for Criminal Complaint from the Court, and thereafter hired Attorney Topazio to defend her. Attorney Topazio contacted the prosecuting officer and presented his client’s version of facts in an attempt to negotiate a resolution of the case. After securing a continuance of the Magistrate’s hearing, Attorney Topazio obtained his client’s medical records to substantiate his client’s course of treatment and prescription medications for the hearing. Today, Attorney Topazio convinced a Clerk Magistrate, with the consent of the police prosecutor, to hold the case open for one year, with the agreement to dismiss the case if his client encounters no further trouble during that time.

Result: Criminal charges do not issue against his client and she will not receive a criminal record provided she stays out of trouble during the proceeding year.

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Steven J. Topazio - Attorney At Law

Tough, Aggressive, and Experience

Criminal Defense

Office Location

Clerk Magistrate Hearings/Application for Criminal Complaint