Theft Crimes

Probable Cause When Investigating Theft Crimes in Massachusetts

Published on: December 7, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Fasanelli, a Massachusetts defendant appealed after convictions for breaking and entering and larceny. The case arose in 2012 when a police officer sitting in an unmarked car was monitoring a residential area of Malden for suspicious activities and break-ins. He saw two men approaching from behind the car and witnessed them walk past a particular house before turning back and entering the porch. A minute later, they left the porch and returned the way they came.

The officer drove around, trying to find them, and contacted other officers to watch out for the men. He came back to the home where the men had entered the porch to talk to the homeowner. She later testified that she was preparing for the day when someone rang the doorbell. The doorknob jiggled. She opened the door and did not recognize the two men standing there. They asked for someone. and she didn’t recognize the name. They left.

A second officer identified the two men who fit the first officer’s description. One held a red gym bag. While the second officer watched, a marked police car approached the men, who reacted by going behind a house to avoid being seen.

Aiding and Abetting in Massachusetts

Published on: November 4, 2015 | by Patrick J. Murphy, Esq.

Somebody can be found guilty of a criminal offense even if he or she didn’t actually commit the crime but aided and abetted the perpetrator of the offense in a “joint venture.” You can be guilty if you intentionally act with another to commit a crime in order to bring it about and make it succeed. In some cases, statements made by someone in a joint venture are used to convict his or her partner.

In Commonwealth v. DiGregorio, the defendant was found guilty of home invasion, kidnapping, assault, and battery by means of a dangerous weapon. On appeal, he claimed that the judge had improperly admitted statements between two friends, these statements didn’t fall under any exceptions to the hearsay rule, and they were therefore inadmissible.

One of the exceptions at issue was the joint venture exception to the hearsay rule. Under this rule, when joint criminal venturers make out-of-court statements against others, these statements are admissible if they are made while a criminal enterprise is pending and in order to further it. The judge must determine whether there was a criminal joint venture between the person making the statement and the defendant, but the judge doesn’t need to make a preliminary ruling that there was a joint venture. The evidence can come in, subject to a motion to strike at a later time if the prosecution doesn’t show there actually was a criminal enterprise. The judge needs to give a jury instruction informing the jury they can only consider the hearsay if they find there was a joint venture, based on all the other evidence except the hearsay statements.
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Breaking and Entering in Massachusetts

Published on: August 5, 2015 | by Patrick J. Murphy, Esq.

Breaking and entering is a crime under G. L. c. 266, § 18. The law defines breaking and entering as the act of entering a dwelling at night or a building, ship, or motor vehicle during the day with the intent to commit a felony. It can lead to fines as well as substantial terms of incarceration in state prison. Punishments are increased for those who break and enter while armed.

In Commonwealth v. Bethune, a defendant appealed from convictions for breaking and entering with intent to commit a felony and stealing in a building. The convictions arose from two different events. The first involved a breaking and entering when the police saw him walking with a jewelry box that they later learned was stolen. The second involved a breaking and entering when the police saw the defendant flee from a house with the burglar alarm ringing.

The second incident arose when the police officer was parked across the street for other reasons and heard a voice alarm. He came up to the house where the alarm was sounding, and he saw someone wearing a tank top leave. The officer yelled for the defendant to stop to no avail, and he and another officer ran after the man. Eventually the first officer had to stop, but the second officer continued running after the man. A third officer joined in and saw someone running who matched the description he’d been given, and he saw him hide behind a trash compactor. The original two officers came and identified the defendant as the person who had fled 3-4 minutes before.
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Receiving Stolen Property in Massachusetts

Published on: December 15, 2014 | by Patrick J. Murphy, Esq.

In the recent appellate decision of Commonwealth v. Hernandez, a defendant appealed from a conviction for receiving stolen property. The case arose when the defendant was riding a bicycle down the street, pulling another bicycle along with him. The police stopped him and asked what he was doing. The defendant offered two explanations for having a second bicycle. He also consented to the officers searching the duffel bag he wore on his back.

The duffel bag contained a package of Proactiv with a label addressed to Thomas Shepard. The defendant claimed he found the bike and the box nearby, and he offered to return them both. The officers arrested him on the grounds that he gave conflicting accounts of the objects and was carrying something that was addressed to someone else.

At a bench trial, the owner of the Proactiv, Thomas Shepard, testified that he hadn’t changed the address on his Proactiv shipments when he moved and hadn’t realized he was missing a package until the prosecutor contacted him. The defendant moved for a required finding of not guilty when the state closed its case, but his motion was denied. He was convicted.
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Larceny in Massachusetts

Published on: August 4, 2014 | by Patrick J. Murphy, Esq.

In Massachusetts, the type of charges that will be brought for stealing someone else’s property (larceny) depends on the value of what you steal. If the property is worth less than $250, you will be charged with petty theft, but if the property is more than $250, you will be charged with grand theft. Larceny can include shoplifting from a department store or car theft. Generally, it involves theft without force. The punishment for grand theft is up to five years in prison plus fines of up to $25,000.

In Massachusetts, the Commonwealth can prosecute you for personally committing theft, but it can also prosecute you if there is no evidence of direct participation under a joint venture theory. Joint venture is a theory of criminal liability most often applied to drug cases, but it can also come up in a larceny case. The Commonwealth argues that (1) the defendant was present, (2) the defendant helped commit the crime, and (3) the defendant intended the crime to be carried out.

In the recent case of Commonwealth v. Vaillancourt, a Massachusetts court considered the appeal of a defendant convicted of larceny under $250. The Commonwealth had moved forward under two theories: principal liability and joint venture liability. The judge instructed the jury that they could convict the defendant either if she had personally committed larceny or if she had acted as a joint venturer.
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U.S. Supreme Court Rules in Favor of Defendant in Mandatory Minimum Case Alleyne v. U.S.

Published on: December 19, 2013 | by Patrick J. Murphy, Esq.

In a very narrow plurality opinion, the U.S. Supreme Court recently decided to overrule a decision reached just 11 years ago, in the name of protecting defendants’ Sixth Amendment rights.In the case, Alleyne v. US, 133 S. Ct. 2151, Sup. Ct. (2013), the Court examined the role of the jury and judge in proving elements versus enhancements for sentencing purposes.

In the case, Alleyne had been involved in a robbery involving a firearm. The underlying criminal statute stated that regarding sentencing, a conviction of the crime would result in a minimum of 5 years in prison. If a firearm was brandished during the commission of the crime, the minimum sentence would be bumped up to 7 years.
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Roxbury Man Arrested in Connection with Burglary

Published on: August 21, 2013 | by Patrick J. Murphy, Esq.

A Roxbury man was reportedly arrested for the burglary of a Brookline church based on police finding his fingerprints on a candy bowl.

The charges included breaking and entering at night with the intent to commit a felony, larceny from a building, and larceny of a motor vehicle.

The theft was reported by an individual living within the rectory at approximately 3 in the morning. The missing items included a laptop, iPad, flat screen television, and the rectory’s pickup truck.
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Two Men Arrested in Connection with Train Station Altercation

Published on: August 8, 2013 | by Patrick J. Murphy, Esq.

Two men accused of committing a hate crime at South Station were arraigned on charges of unarmed robbery, assault and battery, and a civil rights violating with injury in a Boston court late last month.

Both individuals were subsequently held on $15,000 bail.

Investigators claim that the victim of the attack was waiting inside the lobby for the South Station Commuter Rail early one Saturday morning when the two defendants allegedly began yelling homophobic slurs at him without any prior provocation. Transit police say the man ignored the men and eventually asked them to leave him alone. Police say the men then returned five minutes later, at which point they punched the man and stole his phone before fleeing.

The victim was later treated at a local hospital for injuries to his face. Authorities said they used surveillance tape footage in conjunction with the man’s cellphone to locate the suspects.

One of the men admitted to police during questioning that he and the other defendant got into an argument with the victim, during which time he punched the man.
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New York Woman Charged with Larceny in Connection with Boston Marathon Fund

Published on: July 25, 2013 | by Patrick J. Murphy, Esq.

A woman living in New York has been accused of stealing nearly half a million dollars from One Fund Boston, a fund meant to help victims of the Boston Marathon attack.The woman allegedly submitted extensive documentation showing that she had been admitted to a Boston hospital with a traumatic brain injury.

The notarized documents reportedly demonstrated that the woman had been admitted to the Boston Medical Center for two days, and then transferred to the Albany Medical Center for an additional ten days. The documents included medical records stating that the woman suffered from long-term memory loss, impaired speech, and loss of motor function. She also reportedly claimed that she would require future surgery.

Her claim for $480,000 was approved and paid by One Fun at the end of June. The attorney general has since received a tip that the claim may have been fraudulent. Further investigation revealed that the woman did not check in to either of the hospitals she claimed to have on the dates she claimed. Furthermore, the Attorney General does not believe that the woman was in Boston at the time of the attack.

The woman was arrested last week near her home in New York on a fugitive warrant, and has since been charged with larceny over $250.

Investigators believe that one or two additional individuals may be involved in the alleged scam.
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