Commonwealth v. Alvarez (Lawyers Weekly No. 11-117-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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 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 […]