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14-P-733 Appeals Court
COMMONWEALTH vs. ALEJANDRO ALVAREZ.
No. 14-P-733.
Suffolk. December 1, 2015. - September 2, 2016.
Present: Rubin, Maldonado, & Massing, JJ.
Larceny. False Pretenses. Boston Housing Authority. Practice,
Criminal, Indictment, Variance, Restitution, Sentence.
Practice, Civil, Remark by judge. Restitution.
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.
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
2
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
1
The two perjury counts do not form the basis of any issues
on appeal.
3
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.
Discussion. 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
4
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.
5
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 Commonwealth v.
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
Commonwealth v. 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 by false pretenses charge is properly
met. See Cheromcka, supra at 778-779 (The district paid bus
drivers for services rendered not to the district, but to the
defendant based on false time cards submitted by the defendant).
2
Because we conclude that the lease in this case was a
valuable contract in force, we do not decide whether the lease
also constitutes a conveyance of "land."
6
Furthermore, we are not persuaded by the defendant's
contention that, because he faithfully paid the rent and the BHA
obtained the government subsidy for the unit, there was neither
a theft of property nor a theft of property with any "pecuniary"
value. The defendant paid below market rent for something worth
more. He thus did obtain something of pecuniary value, the
value of the difference between what he paid and rent at market
value. The fact that the BHA still obtained its subsidy through
the United States Department of Housing and Urban Development
(HUD), is beside the point: through the defendant's
misrepresentation he received something of pecuniary value worth
more than the amount he paid.
The BHA is charged with allocating an extremely scarce
resource to only qualified applicants. Part of that
responsibility involves the requirement that eligible applicants
reside in the housing provided, as that ensures the subsidy
benefit is allocated to, and occupied by, only qualifying
persons.
By representing that he intended to reside in the
apartment, the defendant induced the BHA to part with a
possessory interest of a limited, valuable, and highly sought
after resource -- below market rate public housing. As a result
of the defendant's pretense, the BHA allocated this commodity to
the defendant, depriving a qualified individual from renting the
7
apartment.3 In essence, the BHA gave a financial benefit to
someone who said he was what he was not -- a tenant entitled to
subsidized housing. See Gall, supra at 287 (deprivation of the
"timely use of money" as the result of the defendant's false
statements may also form the basis for larceny by false
pretenses).
The defendant's contention that the occupancy was merely an
unauthorized use, rather than a larceny, is similarly misplaced.
First, the defendant's occupancy of the apartment was authorized
-- albeit on the basis of the defendant's false representation
to the BHA. Moreover, the defendant did not merely misuse the
unit but rather took exclusive possession of it for a
predetermined renewable period of time. Contrary to his
assertion that his occupancy constitutes a use and not a taking,
he displayed no intention on his part, nor was there any
expectation on the part of the BHA, of his returning that
possessory interest during the time he qualified for the
3
It could be argued that the true "victim" in this case was
not the BHA, but rather the next person on the list for
subsidized housing. In either case, the identity of the
property owner is immaterial; the Commonwealth need only
establish, beyond a reasonable doubt, "that the property
belonged to someone other than the defendant." Commonwealth v.
Souza, 397 Mass. 236, 238 (1986). See Commonwealth v. Aldrich,
88 Mass. App. Ct. 113, 115 (2015). Cf. Commonwealth v.
McGovern, 397 Mass. 863, 868 (1986) (in context of malicious
destruction of property, "[i]t is immaterial whether the
defendant knew the identity of the owner of the property").
8
subsidized housing. Contrast Commonwealth v. Rivers, 31 Mass.
App. Ct. 669, 671 (1991) (no larceny where defendant dumped
waste in landfill without paying town fee, because town parted
with no property); Commonwealth v. Olivera, 48 Mass. App. Ct.
907, 908-909 (1999) (joy riding, which assumes use without
authority, but includes the return of the stolen vehicle to its
owner or abandoning it where it can be recovered is not larceny:
it does not show the requisite intent to deprive owner of
vehicle permanently). In sum, the defendant obtained by false
pretenses the benefit of below-market rent on an apartment to
which he was not entitled, as that apartment was reserved for
occupancy by eligible individuals only.4
2. Variance in the indictment. Next, the defendant argues
that he was prejudiced because the indictment language varied
from the proof. The defendant concedes that he did not raise
this issue at trial, and that review is limited to assessing
whether error, if any, has resulted in a substantial risk of
miscarriage of justice. The indictment described the property
taken as "to wit: approximately $23,778 in . . . subsidies, the
property of [HUD], by leasing [a]partment 791 at 36 Logan Way in
the [c]ity of Boston without residing therein." The prosecutor
4
We do not hold or intend to imply that where market rent
is paid and there is no pecuniary loss, any false statement of
any lease application amounts to the crime of larceny from the
landlord.
9
however, adduced proof that the property at issue included the
lease, as well as the subsidies.
While larceny certainly requires proof that "property" was
taken, the specific nature of the "res converted is not an
element of [the offense]." Commonwealth v. Geane, 51 Mass. App.
Ct. 149, 152 & n.5 (2001).5 To the extent that an indictment
includes unnecessary specifics about an element of the crime,
such specifics constitute unnecessary "surplusage." Id. at 152.
Here, the defendant took possession of subsidized housing by
false pretenses; the dollar amount of the HUD subsidies as the
property stolen was simply surplusage. There is no error posed
by the form of the larceny indictment in relation to the proof
at trial.
Furthermore, the indictment sufficiently apprised the
defendant of the nature of the charges against him, so as to
permit him to effectively prepare a defense. Compare id. at
151. It adequately conveyed the charge of falsely obtaining the
right to reside in a subsidized rental unit by stating the
apartment number, the name of the housing development, and the
location of the housing development. Compare Stirone v. United
5
See generally G. L. c. 277, § 25 ("If an indictment for a
crime involving the commission or attempted commission of an
injury to property describes the property with sufficient
certainty in other respects to identify the act, it need not
allege the name of the owner").
10
States, 361 U.S. 212 (1960) (indictment that related to commerce
of sand into the state did not encompass commerce of steel out
of the state); Commonwealth v. Ohanian, 373 Mass. 839, 842-844
(1977) (indictment involving checks drawn on one bank does not
include checks drawn on an entirely separate bank).
The defendant makes no argument in his brief, nor could he,
that he was surprised by the Commonwealth's position at trial
that the property taken was the combination of the lease and the
subsidies. At the hearing on the defendant's motion to dismiss,
eight months before trial, the prosecutor made clear that the
lease was part of the property the government was alleging had
been obtained through false pretenses. The prosecutor stated
specifically that the "defendant lied about his residency in
order to get a subsidized lease and he did in fact get a
subsidized lease based on that lie." The prosecutor continued
that the rent was "irrelevant" because what is at issue is that
the defendant "obtained the lease" and "the lease has value."
Given these statements, in combination with the defendant's
failure to request a bill of particulars, and the lack of any
evidence before or at trial of the defendant's confusion about
the nature of the property stolen, it is clear the defendant was
not prejudiced.
To the extent the defendant attempts to bolster his claim
of prejudice by claiming that the prosecutor withheld the
11
Commonwealth's theory (i.e., that the property stolen included
the lease) until closing argument, is unavailing. Here the
closing argument was the Commonwealth's first opportunity to set
out the substantive facts.
Moreover, the lack of objection to the argument is telling,
and supports the notion that the Commonwealth maintained
throughout the proceedings, that the property at issue was both
the lease and the HUD subsidies. The allocation of the
apartment at below-market rent, made possible by the HUD
subsidies to the defendant, was a beneficial component of the
bargain the defendant struck when he obtained the lease through
false pretenses.
3. Restitution. The defendant argues, and the
Commonwealth properly concedes that the restitution order did
not hew to the necessary requirements. See generally
Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002) citing
Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001); and
Commonwealth v. Denehy, 466 Mass. 723, 738-740 (2014). The
purpose of restitution is to compensate the injured party for
economic losses incurred as a result of the defendant's criminal
conduct and that are documented by the victim.6 Here, the judge
6
There are several judicially imposed restrictions on the
imposition of restitution, which include, that 1) it be
connected to the crime; 2) it be limited to the economic loss of
the victim; 3) there is evidentiary support for the order; and
12
ordered the defendant to pay $14,639, which represented the
difference between the rent he actually paid and the rent he
would have paid for a comparable nonsubsidized apartment.
However, no evidence was adduced that this amount represented an
economic loss incurred by the BHA. Nor was any evidence adduced
that the amount of the HUD subsidy paid to the BHA was reduced
as the result of leasing the apartment to the defendant, or that
the BHA lost any rent. We therefore vacate the restitution
order and remand the case for a further restitution hearing at
which it can be determined whether the BHA suffered any economic
loss as a result of the defendant's conduct. The absence of any
such proof, however, does not alter our conclusion that property
was taken when the BHA was induced by the defendant to allocate
subsidized housing to an ineligible tenant.
4. Judge's statements at sentencing. During sentencing,
the judge questioned why she should impose only a $25,000 fine
and a $436 restitution order, because in her view, that amount
was about equal to the HUD subsidy of which the defendant had
had the benefit, so in effect, there would be no punishment.
The inquiry was merely part of a discussion regarding the
appropriate punishment given that the judge viewed the theft of
public housing as a very serious crime. That the judge held
4) there is an opportunity for hearing that includes the right
of cross-examination and ability to rebut with other evidence.
See id. at 737 n.20.
13
this view and took it into account was not improper but rather
an appropriate component of that which is properly considered at
sentencing. See e.g. Commonwealth v. Derouin, 31 Mass. App. Ct.
968, 970 (1992), quoting from Commonwealth v. Coleman, 390 Mass.
797, 805 (1984) (appropriate considerations include the
defendant's history and behavior and, perhaps most important,
"the nature of the offense and the circumstances surrounding the
commission of the crime"). See also Figgs v. Boston Housing
Authority, 469 Mass. 354, 362 (2014) (discussing the importance
"of promoting decent and affordable housing for all citizens").
Conclusion. We affirm the judgments; however, we vacate
the restitution order and remand the case for further
proceedings consistent with this opinion.
So ordered.