Recently in Larceny/Property Crimes Category

Celtics' Assistant Coach Criminally Charged in What Appears to be Civil Dispute

celtics checkbook.jpg"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.

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Theft of Ammunition Case May Be Full of Holes

ammo shelf.jpgThe Foxboro Police have arrested a woman by the name of Kerry Barasso and charged her with stealing ammunition from Bass Pro Shops. The articles in the Patch and the Sun Chronicle raise serious questions about her culpability and that of a second suspect.

According to Chronicle, the police believe that on January 14, Ms. Barasso and Daniel Foscaldi made purchases at the store, but also took about 300 rounds of assorted ammunition without paying for them. They claim that the couple "concealed the stolen ammunition in the bottom of a black bag with the other items on top." As a result of a State Police bulletin to be on the look out (B.O.L.O.) for the couple and the car, the Marion Police pulled them over the next day. The police towed the car and searched it. Inside they found a black bag containing the purchased items, but no ammunition. According to the Chronicle, "there was not enough evidence at the time to arrest the suspects."

The Foxboro Police conducted a further investigation and did obtain arrest warrants. They executed the arrest of Barasso on January 21 -- one week after the alleged theft. They have not located Foscaldi.

My first question is -- What did the police have when they obtained the arrest warrants that they did not have at the time of the B.OL.O.? The news articles say that a Foxboro Police Detective interviewed employees and reviewed security videos. Apparently none of the employees said that they witnessed the theft of bullets, otherwise store security would not have let the couple leave the store. This makes me wonder what the employees knew when they called the police in the first place, and how it was enough for the B.O.L.O.

So what was on the videos? The news said that the video showed Barasso or Foscaldi with a similar black bag inside the store and that another video shows them driving away in the same car. That proves nothing. If the prosecution is going to obtain a conviction, they must have more than that. If they have video of the two concealing ammunition in the bag, wouldn't that be reported? Wouldn't the Marion Police have had that information when they pulled them over the next day? I wonder if it exists.

Recap: Someone at the store was suspicious and called the police. The police arrived and did an initial investigation that warranted the B.O.L.O. but not warrant any arrests. The couple gets pulled over the next day and since they don't have ammunition, there is not enough evidence to arrest them. A detective sees one video of the couple in the store with a bag similar to the bag found at the traffic stop and another video of them going to their car and leaving. Something is missing here and it is not just the ammunition.

Perhaps a store employee assisted them in the ammunition selections by unlocking a case. The news does imply that the store knew what kind of ammunition they were looking for. But, again, if they knew this, how did they let them leave and how was there insufficient evidence at the traffic stop?

The Chronicle says that Ms. Barasso has been charged with larceny of ammunition and larceny of property worth more than $250. While the Massachusetts larceny statute does have a special provision for stealing firearms, it has no such clause for stealing ammunition. So it may come down to one count of larceny over $250 -- a felony. However, even in the unlikely event that there is enough proof for larceny, proving the value, without the items, will be very difficult. Each round would have to cost 84 cents. It is possible, but possibilities are not proof enough in a criminal case.

Other areas to be explored. Why did't the police charge Shoplifting instead of Larceny? If the value was less than $250 how could the police get felony warrants as opposed to misdemeanor summonses for clerk's hearings?

Where missing ammunition is involved, you may be sure that the police, the prosecutor, and the Wrentham District Court will be taking this very seriously. Obviously, Ms. Barasso and Mr. Foscaldi would be well advised to obtain experienced legal counsel.

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Dedham District Court Arraigns Two on Drug Charges After Norwood Police Search Car

script.jpgThe Norwood Police received a call from TJ Max last week after store employees saw two people removing security tags from merchandize. According to the Transcript and Bulletin, when officers arrived at he store the suspects were still inside. The man, Ergin Abaz, had a shopping bag containing merchandise. The woman, Christin Quattrucci had some goods in her pocketbook. The police arrested both of them for shoplifting. The article states that the police also found pill bottles and a doctor's prescription pad in Quattrucci's possession.

The police then searched their car. They found a "tote bag" that allegedly belonged to Abaz, and they searched that too. Inside they found "drugs and doctor's prescription pad." The doctor's name on the pad matched the name on Ms. Quattrucci's bottles.

Mr. Abaz and Ms. Quattrucci were arraigned in the Dedham District Court on Monday. These are the charges:

Abaz. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class B Drug with Intent to Distribute, Possession of a Class B Drug, and Possession of Class C Drug with Intent to Distribute.

Quattrucci. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class E Drug, and Possession of Marijuana.

These are some observations and areas of concern from a defense perspective:

Why were the police searching the car? Does a shoplifting arrest give the police probable cause to search the car for evidence of the crime? Not likely. I suspect that the police explanation will be as follows: The two were arrested and would not be able to drive away. The car needed to be towed. It is police policy to do an "inventory search" to secure any valuable contents. But, who is to say that the car needed to be towed? Isn't it possible that one or both would bail out of the police station? After all, at that point they were just charged with shoplifting. The police station at 137 Nahatan Street is practically right across the street from TJ Max at 146 Nahatan. If they made bail they could walk over and drive away. Hence, no need for a tow, and no need for an inventory search.

Even if the call for a tow were justified, defense counsel will surely seek information to determine whether an inventory actually took place. If so, the police would have filled out an inventory form with a list of the items found. The absence of such a form may indicate that the search was not an inventory, but a search for evidence. Without probable cause or some other justification such a search would be a constitutional violation.

A motion to suppress will expose an invalid search, suppress the items found, and result in dismissal of the charges related to the search.

Where is the evidence of a conspiracy to violate the drug laws? A conspiracy conviction would require proof that they made an agreement to do something illegal. The article seems to imply that Abaz and Quattrucci were writing their own prescriptions. However, there does not appear to be any proof of that. Moreover, there does not appear to be any proof that they had any agreement to do it. Being in each others' company with the drugs and prescriptions is not enough to prove an agreement.

In any event, there is very little chance that a conspiracy trial will take place in the Dedham District Court based upon these allegations. Procedural rules do not allow for a conspiracy trial to take place at the same time as trial on the other charges unless defendants agree. The prosecution generally does not want two trials when they may get what they want from one.

Finally, why has Abaz been charged with having an intent to distribute drugs at all? A large volume of drugs may support this, but there is nothing in the article about volume. Nor are there any other indicators such as drug sale records, packaging materials, or large amounts of money. These drugs could just as easily have been for Abaz's personal use.


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Stolen Property Charge Lodged After Routine Traffic Stop in Walpole

gps.jpgThe Wrentham District Court will hear Receiving Stolen Property charges against a Millis man because the Walpole Police stopped him for having a loud exhaust and then searched his car. According to the Walpole Times, John Chadwick was driving on Route 27 when Officer Bob Doherty noticed his loud exhaust. After the stop, Officer Doherty found that the car had an illegally altered muffler, no inspection sticker, and "a registry document that appeared to be tampered with."

The police called a tow truck performed an "inventory search." In the console, they found a global positioning system, jewelry, and gift cards. "Doherty . . . suspected that the items were stolen when the home address programmed on [the] GPS did not match Chadwick's address." The police were later able to match the items from the console to items that had been stolen from other towns. This, of course, was "great police work" according to Chief Stillman, and was great news to the owners of the property, but what about Mr. Chadwick's defense?

"Receiving" charges are brought against people when there is no evidence that they actually stole the property in their possession. To prove the charge in this case, there must be sufficient evidence to prove that Chadwick possessed the items, and knew that they had been stolen. In this case, the police asked Chadwick where he got the property, and he said that he got them at his house, "but he didn't know who exactly they belonged to." This statement does not help Chadwick's defense, and may tip the scales on the issue of knowledge.

There is, however, more to Chadwick's defense than just proof of the elements of the crime charged. Since this offense involves possession, an experienced defense attorney will explore the possibility of a motion to suppress - essentially arguing that even if he possessed the items, the police found them by conducting an unreasonable search and seizure. If the search was illegal, the evidence will be suppressed (kept out of evidence at trial) and the case will be dismissed. Let's look at the possibilities, step by step.

Was the stop of Chadwick's car justified? The reason for the stop was an allegedly loud exhaust system. Although it may be interesting to compare his exhaust to that of at least half of the motorcycles we hear during the warm months, this avenue will probably not produce positive results for Chadwick at a motion hearing. This charge, however, is a civil violation ($50 fine), and without more, should result in the issuance of a citation only.

Was the search of Chadwick's console justified? The officer did more than just issue a ticket for loud exhaust because during the stop he discovered that the car had no inspection sticker and had a registry document that appeared to be tampered with. For these reasons he decided to have the car towed. And when the police tow a car they must do an "inventory search" of the contents to protect themselves and the tow truck drivers from claims of missing property.

The problem with this is that the lack of an inspection sticker is also a civil offense that should simply result in the issuance of a citation. So it must come down to the allegedly "tampered" registry document. I can only assume that this document was the car's registration. This issue is, however, easily resolved at a traffic stop. The police, obviously, are able to check the validity of a cars' registration. Since Chadwick was not charged with driving an unregistered motor vehicle, we may assume the registration was valid. Therefore, it may be that the police should have simply issued Chadwick two civil motor vehicle citations and let him go on his way.

Even if the police were justified in towing the car, there is one more thing. Was the search of the GPS justified? After all, the article states that the officer became suspicious about the items in the console after he compared the home address on the GPS to Chadwick's home address. Scrolling around in an electronic device (cell phone, lap top, etc.) is a "search" which must have independent justification. Without the information gained from the GPS, it may be argued that the items should simply have been noted on an inventory form and either stored for safe-keeping or returned to Chadwick on the scene.

Even cases that appear to be "open and shut" require expert legal analysis.

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