Dancy, 640 F.3d at 468. It applies in exactly the same way to police officers, see Colon, 958 N.E.2d at 68, as to correctional officers, see Commonwealth v. Ford, 18 Mass.App.Ct. 556, 468 N.E.2d 663, 665 (1984). And even though the Massachusetts Supreme Judicial Court has not definitively set out the elements required for ABCO under section 13D, there is no principled basis for believing that the elements are any different than the elements set out for ABPO.
February 27, 1985.Further appellate review granted: Reported below: 18 Mass. App. Ct. 556 (1984).
The Commonwealth contends that, if we disagree with its interpretation of the statute, the cases should be remanded for sentencing on the lesser included offense of larceny. See Commonwealth v. Ford, 18 Mass. App. Ct. 556, 559 (1984) (where defendant was tried and convicted under the wrong statute, proper remedy was to remand for resentencing on lesser included offense). Larceny in a building is made up of the following elements: (1) the taking or carrying away of property (2) that belongs to another person (3) from a building (4) with the intent to deprive that person of the property permanently.
We need not decide whether the issue the defendant sought to raise was properly raised by his motion for a new trial because we think it clear that the enhanced penalty statute applied. We base that determination on our construction of the language of the statute, compare Commonwealth v. Ford, 18 Mass. App. Ct. 556, 558 (1984), and one of its obvious purposes: to deter such assaults by persons who, because they are already serving sentences, would not be deterred by additional concurrent sentences. In accordance with G.L.c. 123A, § 2, as appearing in St. 1959, c. 615, the treatment center is a facility of the Department of Mental Health, but it is "at a correctional institution.