Opinion
15-P-1573
03-21-2017
COMMONWEALTH v. Radoslaw CZERKAWSKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his conviction, following a jury trial, on one indictment for larceny over $250 from a person over sixty years of age, in violation of G. L. c. 266, § 30(5). He raises two issues concerning the date alleged in the indictment. We affirm.
The defendant's convictions of two additional indictments for larceny and one for attempted larceny are not challenged on appeal. The defendant's notice of appeal also indicates his intention to appeal the denial of a motion to suppress, but on appeal he makes no argument on that issue.
Background . The victim, Janina Stock, was an elderly woman with dementia, for whom her grandchildren, Karoline and Igor Gierymski, were appointed as coconservators in May, 2012. Stock required a full-time caregiver, and after several family members were unable to maintain that responsibility, in early 2013, the grandchildren hired the defendant to live with and care for Stock. The defendant was told that the grandchildren were solely responsible for Stock's finances. Sometime in mid-2013, the defendant told Karoline that Stock had been insisting that he take her to the bank to cash some bonds that she owned, and Karoline instructed him not to do so.
On May 28, 2013, the defendant went to Citizens Bank in Quincy and asked to cash certain United States savings bonds made out to Stock. The bank manager told the defendant that he needed to have a joint account with Stock in order to deposit the proceeds of the bonds. The defendant led the manager to the parking lot, where Stock was waiting inside a vehicle. The defendant told the manager that Stock was his grandmother and that they were cashing the bonds to pay her medical bills. The manager confirmed that Stock wanted to open joint accounts with the defendant and deposit the bonds into those accounts. The manager also offered to draw up a letter allowing the defendant to cash bonds in her name in the future, Stock agreed, and the manager prepared and notarized the letter. The manager verified certain of Stock's documentation, obtained her signature, and opened a joint checking and a joint savings account in her name and that of the defendant.
The bank cashed the bonds that day, depositing half the proceeds into each of the two accounts ($56,459.23 into both the checking and the savings accounts). Nine days later, on June 6, 2013, the defendant withdrew $25,000 from each of the accounts. On that day, he deposited $50,000 into an individual account that he owned at Bank of America. He was later indicted for larceny in the Superior Court, by way of an indictment which alleged that the defendant, "on or about May 28, 2013," "did steal the property of Janina Stock to wit, US Bonds[.]"
Discussion . The defendant first argues that the evidence was insufficient to prove larceny of the victim's property as charged by the indictment. He submits that the indictment required the Commonwealth to prove that he stole the bonds on May 28, which it was unable to do because, although the bonds were cashed on that date, he did not deposit the $50,000 into his own account until nine days later, on June 6. He contends, therefore, that on May 28 he did not commit larceny, i.e., an "unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently" (footnote omitted). Commonwealth v. Mills , 436 Mass. 387, 394 (2002), quoting from Commonwealth v. Donovan , 395 Mass. 20, 25-26 (1985).
Our review satisfies us that the evidence was sufficient to support the defendant's conviction. The date of the offense is not an essential element of the crime of larceny. See Commonwealth v. Jervis , 368 Mass. 638, 643-644 (1975) ; Commonwealth v. Dunnington , 390 Mass. 472, 476-477 (1983). Under Commonwealth v. Latimore , 378 Mass. 671, 677-678 (1979), the evidence was adequate to allow a rational fact-finder to conclude that the Commonwealth proved the essential elements of the crime of larceny, beginning on May 28 and concluding no later than June 6. The phrase "on or about" could plausibly encompass the later date. Moreover, a rational trier of fact could infer that the defendant intended to permanently deprive the victim of her property on the earlier date, when he both created the joint accounts in direct contravention of the granddaughter's instruction and misrepresented to the bank manager his relation to the victim.
The defendant next claims that the judge erred in responding to a jury question concerning the date in the indictment, thereby creating a substantial risk that he was convicted of a crime for which he was not indicted. The jury sent to the judge the following note:
"[C]harge number one refers to on or about May 28th. On May 28th, proceeds from bonds were deposited into two joint underlying accounts with Mrs. Stock as one of the account holders. Your instructions referred to stealing under a larceny must have a permanent [sic] associated with it. The question is whether we need to concern ourselves with the date, May 28th, which was when the bonds were deposited versus the day of June 6th, when the funds were permanently ... removed from Mrs. Stock's possession by virtue of being removed from the joint account?"
In response, the judge instructed the jury:
"[T]he date alleged in the indictment is not an essential element of the crime charge[d], and therefore, need not be proved beyond a reasonable doubt by the Commonwealth."
As noted above, this was a correct statement of the law, and indeed, the defendant does not assert otherwise. See Jervis , 368 Mass. at 643-644 ; Dunnington , 390 Mass. at 476-477. There was no error in the judge's response to the jury. Furthermore, because the indictment specified that the alleged theft was of United States bonds and took place "on or about May 28, 2013," the defendant was sufficiently on notice of the conduct for which he was charged, and he can therefore claim no prejudice from the wording of the indictment. See Commonwealth v. Grasso , 375 Mass. 138, 139 (1978) (although a crime must be proven as charged, "a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense"). Accord G. L. c. 277, § 35.
In an effort to establish prejudice, the defendant misplaces reliance on Commonwealth v. Barbosa , 421 Mass. 547 (1995). There, the grand jury heard evidence of two separate cocaine sales on a particular date, but indicted the defendant for only one offense on that date. Id . at 548. After the Commonwealth offered evidence of both sales, and the jury returned a general verdict of guilty, id . at 549, the Supreme Judicial Court held that it was unclear whether the sale of which the defendant was convicted was the same sale for which he was indicted. Id . at 549-551. This created "the very real possibility that the defendant was convicted of a crime for which he was not indicted," in violation of art. 12 of the Declaration of Rights of the Massachusetts Constitution, id . at 551, requiring that the conviction be reversed. Id . at 554. Here, in contrast, the defendant does not argue that the indictment for larceny occurring "on or about May 28" was based on any larceny other than the one beginning on May 28 and concluding no later than June 6.
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Judgments affirmed .