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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.
