Resident Found Guilty of Larceny for Giving Subsidized Unit to Unqualified Niece

Facts: A resident had applied and was approved for subsidized housing that entitled him to a unit at a rate below the market value. He was placed on a waiting list, and almost five years later, he was notified of the availability of a unit. By then, he had already secured alternative housing for himself. Rather than reject the unit, he pretended to take possession of the unit for himself but actually gave possession of the unit to his niece, who, as an undocumented person, didn’t qualify for subsidized public housing.

The resident 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 that the niece rather than the resident himself resided in the unit, the state brought criminal charges against him. It charged him with two counts of perjury and one count of larceny by false pretenses.

The resident pleaded guilty to the two perjury counts and elected for a jury-waived bench trial on the larceny charge. The judge found the defendant guilty of the larceny charge and sentenced the resident 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 resident appealed the larceny conviction, arguing that the property alleged to have been taken doesn’t fall within the state’s larceny statute.

Ruling: A Massachusetts appeals court agreed with the lower court’s decision.

Reasoning: Under Massachusetts state law, to prosecute for larceny by false pretenses, the state 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.” Under that statute, “property” includes “money ... [or] a deed or writing containing a conveyance of land, [or] any valuable contract in force.”

Here, the lease gave the resident possession of a government-subsidized housing unit below the fair market rental rate. The court ruled that he obtained by false pretenses something of value for which he did not pay: the difference between the market rent for the unit and the reduced rent he actually paid. The unit he took possession of is reserved for qualifying low-income individuals or families. There’s 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 housing authority leased the unit to him, 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 unit, he wouldn’t have obtained or qualified for subsidized housing.

• Commonwealth v. Alvarez, September 2016