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Commonwealth v. DeGennaro (and 13 companion cases) (Lawyers Weekly No. 11-128-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   11‑P‑1398                                       Appeals Court 11-P-1383   COMMONWEALTH  vs.  PETER DeGENNARO (and thirteen companion cases[1]). Nos. 11‑P‑1398 & 11-P-1383. Middlesex.     September 11, 2012.  ‑  October 21, 2013. Present:  Meade, Sikora, & Wolohojian, JJ.   Embezzlement.  Fraud.  Home Improvement Contractors.  Contract, Construction contract, Trustee.  Escrow.  Real Property, Purchase and sale agreement.  Trust.  Practice, Criminal, Motion for a required finding, Instructions to jury, Presumptions and burden of proof, Findings by judge.  Evidence, Intent, Presumptions and burden of proof.  Intent.  Statute, Construction.       Indictments found and returned in the Superior Court Department on September 11, 2007.   Ten cases were tried before Sandra L. Hamlin, J., and four cases were heard by Thomas P. Billings, J.     Judith Ellen Pietras for Peter DeGennaro. Kevin J. Curtin, Assistant District Attorney, & Max Bauer for the Commonwealth. Elizabeth Dembitzer for Charlene Connors.       SIKORA, J.  This appeal requires interpretation of a seldom litigated criminal statute.  The defendant, building contractor Peter DeGennaro, engaged through various business entities in the construction and improvement of residential homes.  The codefendant, Charlene Connors, participated in the operations of the entities.  At the conclusion of a five-day trial, a Superior Court jury convicted each defendant of five counts of embezzlement of funds deposited with them by two customers.  In accordance with purchase and sale agreements presented by the defendants for the construction of homes, the customers had advanced the funds to DeGennaro for placement in escrow accounts.  DeGennaro and Connors depleted the escrow funds; the building entities did not perform the promised construction.  On appeal, DeGennaro contends, inter alia, that the fiduciary embezzlement statute under which the Commonwealth prosecuted him does not apply to the charged conduct, and that his conduct constituted only a civil breach of contract, not a criminal violation.  Connors presents the same arguments and challenges the sufficiency of the evidence of her role as a joint venturer in the charged offenses.[2]   By a separate bench trial of both defendants addressing transactions with different customers, a second Superior Court judge convicted DeGennaro, alone, of four counts of contractor fraud, three for failure to complete contractual renovation of existing homes and one for nonpayment of a subcontractor for materials and services.  On appeal DeGennaro challenges the validity of the indictments and the sufficiency of the evidence. For the following reasons, we affirm all convictions from the […]

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Posted by Massachusetts Legal Resources - October 21, 2013 at 5:08 pm

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