Heard: December 1, 2015.
found and returned in the Superior Court Department on
January 23, 2013.
case was heard by Elizabeth M. Fahey, J.
A. Cohn for the defendant.
B. Linn, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Maldonado, & Massing, JJ.
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.
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
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. 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.
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).
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
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
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." 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 ...