"Larceny by Check" charges were brought against Walter McCarty in the Framingham District Court last week. The former Celtics player and present assistant coach apparently wrote a check to a cabinet maker without enough money in his account to cover it.
According to the Milford Daily News, McCarty was building a home in Wayland and agreed to pay approximately $33,000 to an Illinois company for some cabinets. McCarty made a $12,000 down payment and after the cabinets were installed, he sent them another check for $18,000. That check bounced.
According to the article, McCarty told the cabinet company that his checking account had been compromised by an identity thief. The article also alleges that between May 30 and June 23 he made several promises to make payment. The company eventually contacted the police and they brought criminal charges. At his arraignment, McCarty said that the case involves a construction dispute.
In the event that he was withholding payment because he had issues with the cabinets or the installation, this should not be in criminal court. The fact that the bad check appeared to be less than enough to satisfy the final price indicates that he was withholding at least $3,000 and that indicates that a dispute did exist. A written contract would be helpful in this regard. Written communications between the parties will surely shed more light on this issue, especially if McCarty had been complaining about the product all along.
Making promises to pay without complaining about the product, however, would undercut the construction dispute claim. Moreover, the article implies excuse overkill because there was an initial claim of of identity theft and a subsequent claim of construction dispute. I suppose it could be both, and McCarty is surely entitled to the benefit of a doubt.
McCarty's defense is not unusual in larceny by check cases. Larceny by check is, however, somewhat of an hybrid larceny. While one may not be guilty of this without proof of an intent to defraud, the statute, contains language that does not readily accommodate individuals in this situation. The law says that just writing a bad check is "prima facie evidence of an intent to defraud and knowledge of insufficient funds . . . unless the maker . . . shall have paid the holder . . . within two days of receiving notice that such check . . . has not been paid." Since the statute does not indicate a punishment for its violation we must look to the larceny statute. There we find that McCarty has been charged with a felony punishable by up to 5 years in state prison.
"Prima facie" is a legal term that essentially means that the evidence is taken as preliminary proof subject to offsetting evidence. The larceny by check law essentially says that you have two days from learning that you have written a bad check to pay the full amount. If you don't, your failure is prima facie proof that you have committed the crime of larceny.
This is an unusual statute that appears to clash with the presumption of innocence. The rationale, however, is fairly clear. In a typical larceny, a person takes someone's property with the intent to keep it. Here, a person is allegedly pretending to pay for something by writing a check and the victim has lost property while relying on the pretense. Whether this fits McCarty's case remains to be seen. One thing is clear.
If McCarty had simply failed to pay, he would not have been in criminal court. The act of writing the check changed everything.