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Commonwealth v. Alvarez

Appeals Court of Massachusetts, Suffolk

September 2, 2016


          Heard: December 1, 2015.

         Indictments found and returned in the Superior Court Department on January 23, 2013.

         The case was heard by Elizabeth M. Fahey, J.

          Jeremy A. Cohn for the defendant.

          Paul B. Linn, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Maldonado, & Massing, JJ.

          MALDONADO, J.

         The defendant applied and was approved for subsidized housing through the Boston Housing Authority (BHA), which entitled him to a rental unit at a rate below the market value. He was placed on a waiting list and almost five years later, the defendant was notified of the availability of a subsidized apartment. By then, the defendant had already secured alternative housing for himself. Rather than reject the unit, the defendant pretended to take possession of the apartment for himself but actually gave possession of the apartment to his niece, who, as an undocumented person, did not qualify for subsidized public housing.

         The defendant faithfully paid the rent on behalf of his niece and renewed his eligibility each year -- including continuing the pretense of his residing at the premises. Upon learning the defendant's niece rather than the defendant himself resided in the unit, the Commonwealth brought criminal charges against the defendant. It charged the defendant with two counts of perjury and one count of larceny by false pretenses.

         The defendant pleaded guilty to the two perjury counts and elected for a jury-waived bench trial on the larceny charge. A joint stipulation of facts was entered, along with the Commonwealth's exhibits. The judge found the defendant guilty of the larceny charge and sentenced the defendant to a five-year period of probation, a $25, 000 fine, and restitution in the amount of $14, 639. He also was sentenced to concurrent terms of five years for the two perjury charges. The defendant appeals from the larceny conviction, raising several challenges.[1] He asserts that 1) the property alleged to have been taken does not fall within the larceny statute; 2) there was a fatal variance between property alleged to have been taken and the proof of the property taken; 3) the restitution ordered was based on improper factors; and 4) the judge made improper remarks at sentencing which unfairly factored into his sentence. We affirm.


         1. Property under the larceny statute. In a prosecution for larceny by false pretenses, the Commonwealth must prove that "(1) a false statement of fact was made; (2) the defendant knew or believed the statement was false when he made it; (3) the defendant intended the person to whom he made the false statement to rely on it; and (4) the person to whom the false statement was made did rely on it and, consequently, parted with property." Commonwealth v. Occhiuto, 88 Mass.App.Ct. 489, 496-497 (2015), quoting from Commonwealth v. Cheromcka, 66 Mass.App.Ct. 771, 776 (2006). On appeal, the defendant's arguments focus on the fourth element. He asserts, for a variety of reasons, that the Commonwealth failed to establish that the BHA "parted with property" as that term is defined under G. L. c. 266, § 30(2).

         Under that statute, "property" includes "money . . . [or] a deed or writing containing a conveyance of land, [or] any valuable contract in force." G. L. c. 266, § 30(2), inserted by St. 1945, c. 282, § 2. The defendant argues that this definition does not include, or is at least ambiguous as to whether it includes a lease, particularly where the parties obtained what they bargained for, an apartment in exchange for rent. The defendant suggests that his false residency statement was merely a lease term, rather than a basis for having obtained this housing appropriation in the first instance. In the context of this case, we conclude otherwise.

         The defendant did not gain possession of an ordinary rental unit. Here, the lease gave the defendant possession of a government subsidized housing unit below the fair market rental rate. The defendant obtained by false pretenses something of value for which he did not pay: the difference between the market rent for the apartment and the reduced rent he actually paid. The apartment the defendant took possession of is reserved for qualifying low-income individuals or families. There is a limited supply of such housing and the waiting list for eligible individuals is long, as evidenced by the defendant's almost five-year wait for a unit. When the BHA leased the apartment to the defendant, it allocated a scarce governmental resource to him, and did so on the basis of his indicating his intention to reside in the subsidized unit. Had the defendant not sworn to living in the apartment, he would not have obtained or qualified for subsidized housing.

         The BHA lease to the apartment afforded the defendant, to the exclusion of qualified applicants, the right to occupy a government subsidized apartment for a renewable determined period of time. See e.g. Black's Law Dictionary 800 (5th ed. 1979) (definition of lease includes "Contract for exclusive possession of lands or tenements for determinate period"). The defendant's promise to reside in the apartment and the BHA's assignment of the apartment to him on that basis constitutes a "valuable contract in force."[2] See generally Commonwealthv.Gall, 58 Mass.App.Ct. 278, 287 (2003) (defendant's false statements induced two companies to part with an insurance policy that is a valuable contract in force). See also Commonwealthv.Levin, 11 Mass.App.Ct. 482, 496 (1981) (same). Where the defendant's representations induced the BHA to allocate a valuable benefit in the form of leasing an apartment to the defendant at a rate below market value, the property element of the larceny ...

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