Opinion
16-P-233
02-09-2017
COMMONWEALTH v. Charlene CONNORS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Charlene Connors, was convicted of five counts of embezzlement by a fiduciary in violation of G. L. c. 266, § 57. On March 9, 2015, the defendant, relying on Commonwealth v. Labadie , 467 Mass. 81, 87-88 (2014), filed a motion for a new trial arguing that, in order to convict her of embezzlement by a fiduciary, the Commonwealth was required to prove that she intended to deprive the rightful owners of their property permanently; the motion was denied without a hearing. She makes the same argument on appeal, claiming that in Labadie the Supreme Judicial Court modified the elements of fiduciary embezzlement, adding the additional element of "intent to permanently deprive." We disagree, and affirm for essentially the reasons stated in the motion judge's memorandum.
We affirmed the judgments on October 21, 2013. See Commonwealth v. DeGennaro , 84 Mass. App. Ct. 420 (2013). The Supreme Judicial Court denied further appellate review, see Commonwealth v. Connors , 466 Mass. 1111 (2013), and Commonwealth v. DeGennaro , 466 Mass. 1111 (2013), and denied Connors's subsequent motion to reconsider the order denying further appellate review.
We review the judge's denial of the defendant's motion for a new trial to determine "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Millien , 474 Mass. 417, 429 (2016) (quotation omitted). "The decision whether to allow a motion for a new trial lies within the discretion of the judge and will not be reversed unless ‘manifestly unjust or unless the trial was infected with prejudicial constitutional error.’ " Commonwealth v. Martin , 467 Mass. 291, 316 (2014), quoting from Commonwealth v. Nieves , 429 Mass. 763, 770 (1999).
The defendant's argument that Labadie modifies the elements of G. L. c. 266, § 57, to require a showing of intent is misplaced for two reasons. First, in affirming the judgments on direct appeal, we stated explicitly, based on settled law, that the crime of fiduciary embezzlement "does not include an intent of permanent deprivation." Commonwealth v. DeGennaro , 84 Mass. App. Ct. 420, 429 (2013), citing Commonwealth v. Garrity , 43 Mass. App. Ct. 349, 353-354 (1997). Second, the statutes addressed in Labadie were those relating to bank embezzlement ( G. L. c. 266, § 52 ) and general larceny by embezzlement ( G. L. c. 266, § 30 ); the crime of fiduciary embezzlement was neither raised nor contemplated. Commonwealth v. Labadie , 467 Mass. at 86-88. Consequently, the decision in Labadie does not affect the reasoning in our affirmance of the judgments. See Commonwealth v. DeGennaro , supra .
We further stated as follows:
"General Laws c. 266, § 57, dispenses with the requirement of the intent of permanent deprivation for several apparent reasons. The statute contemplates a formal fiduciary relationship and a correlatively heightened duty of loyalty. Second, the formal fiduciary's misappropriation may often start without an intention of permanence but continue irreversibly toward permanence. The violator may begin a defalcation with the mentality of a borrower and the slide downward into the role of a keeper." (Footnote omitted.)
Commonwealth v. DeGennaro , 84 Mass. App. Ct. at 429-430.
We discern neither error nor abuse of discretion in the denial of the defendant's motion for a new trial. See Commonwealth v. Martin , supra .
Order denying motion for new trial affirmed .