Commonwealth v. Hardin (Lawyers Weekly No. 11-182-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1470 Appeals Court COMMONWEALTH vs. JAMES C. HARDIN. No. 14-P-1470. Suffolk. September 10, 2015. – December 7, 2015. Present: Green, Rubin, & Hanlon, JJ. Breaking and Entering. Larceny. Practice, Criminal, Complaint, Dismissal, Appeal by Commonwealth. Jurisdiction. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 19, 2014. Dismissal of two counts of the complaint was ordered by Franco J. Gobourne, J. Zachary Hillman, Assistant District Attorney, for the Commonwealth. Timothy St. Lawrence for the defendant. GREEN, J. The Commonwealth and the defendant agree that the grounds on which a judge of the Boston Municipal Court dismissed two counts of the complaint against the defendant were invalid.[1] The defendant nonetheless contends that the dismissal should be affirmed, based on his claim (raised for the first time in his appellate brief) that the complaint was deficient on its face. To be specific, the defendant observes that the complaint failed to specify that the vehicles into which the defendant broke and entered, and the property he stole, were owned by someone other than the defendant.[2] Since an element of the crime of breaking and entering is that the defendant broke into property “owned by someone other than the defendant,” Commonwealth v. Kalinowski, 360 Mass. 682, 684 (1971), and an element of the crime of larceny is that “the property stolen must be ‘the property of another,’” Commonwealth v. Souza, 397 Mass. 236, 238 (1986), quoting from G. L. c. 266, § 30(1) (1984 ed.), the defendant suggests that the order of dismissal was appropriate. We decline to affirm dismissal on the alternative ground now raised by the defendant, and remand the matter to the Boston Municipal Court for further proceedings consistent with this opinion. To be sure, “[a]n appellate court is free to affirm a ruling on grounds different from those relied on by the [trial court] judge if the correct or preferred basis for affirmance is supported by the record.” Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). However, we are not required to do so, and we decline in the present circumstances to exercise our discretion to consider in the first instance the alternative ground now suggested by the defendant. Put simply, we see no benefit in the interest either of justice or of judicial economy […]