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William D. Kickham
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Larceny By Stealing

Cash held behind back

As with most crimes, the crime of larceny is defined by statute. Massachusetts General Laws Chapter 266 §30 provides for the definition and the range of penalties. Generally, larceny is defined as stealing property owned by another person or organization with the intent to permanently deprive the owner of that property. "Property of another" refers to something that was either owned or possessed by a person other than the person who "stole" the property. As to who is an "owner", that is defined as someone who had possession of the property. "Possession" can be actual, or constructive, meaning the owner may not have had physical possession, but he had the legal right to it.

Larceny of property valued under $250 constitutes a misdemeanor offense in Massachusetts and can be punished by a sentence up to one year in a county jail; larceny of property worth in excess of $250 constitutes a felony offense and can be punished by a sentence of up to five years in state prison. But what is "stealing", and what is "property"?

Massachusetts law defines "property" as money (cash,) securities such as stocks and bonds, deeds to property, "chattels" (meaning tangible items,) items that are either attached to or intrinsic to real estate, animals and many more things - and most importantly in the internet age, electronic data. The legal definition of "property" encompasses a lot more things than most people would suspect.

"Property of another" means that the item was owned or possessed by someone other than the defendant. The owner of property is anyone who has actual or constructive possession of the item.

The act of "stealing" is defined legally as consisting of three elements:

  1. That a person took and carried away some type of property;
  2. That the ownership or custody (possession) of that property was held by someone else;
  3. That the person taking the property intended to permanently deprive the true owner of ownership or possession of that property.

In order for the Commonwealth to secure a conviction on most charges of larceny, prosecutors must prove each of the above three elements. While proving these three elements is sometimes simple for the prosecution, if a defendant is represented by a talented Massachusetts larceny defense lawyer the prosecution's job becomes a lot harder, and an acquittal (or plea to a less-serious offense, with less serious penalties) becomes much more likely.

Very briefly, let's look at what type of actions or conduct can constitute each of the above three elements:

"Taking and carrying away property": This definition may seem simple, but it isn't. Legally, what is "taking"? What is "carrying away"? Generally speaking, the element of "taking and carrying away" property is satisfied when a person physically transfers the control of property from the true owner's control, to their own control. This can result whether the property is moved across the country, or moved a few inches. The transfer of control of the property is what is critical. Also, the time element involved does not have to be great: It can be years, or a few minutes. The property does not have to be literally "carried away" for this element to be satisfied.

"Owned or possessed by someone else": The key test here is, did the person from whom the property was taken either own the property, or did he have lawful possession or custody of the property? If the answer is yes, then this element of the crime of larceny by stealing is satisfied. Also very important: The Commonwealth does not have to prove that the person from whom the property was taken owned the property, only that he had the right to possess it.

"Intent to permanently deprive": The prosecution can prove this element by either direct evidence, or circumstantial evidence. A defense that claims the defendant was going to return the property later, or reimburse the owner for the value of the property, will not likely succeed. Also, if a defendant steals someone else's property, later decides he has no interest in the property and disposes of it without regard to whether the true owner ever recovers the property, that will satisfy the element of "intent to permanently deprive."

However, if a defendant charged with larceny was acting under a reasonable and honest belief that he or she did have a legal right to the stolen property, then the element of intent to permanently deprive would not exist, and the charge would likely fail.

Penalties for Larceny By Stealing

Sentencing options for the offense of larceny in Massachusetts vary fairly widely, usually being determined by the value of the stolen property. In case you're wondering if either prosecutors or potential thieves need to walk around knowing the value of "everything under the sun", they don't: Common knowledge of the value of typical property items can be used to determine the value of stolen property: As stated above on this page, if stolen property is generally valued to be $250.00 or more, or if the stolen property consists of a gun or firearm of some kind, that constitutes a felony in Massachusetts and a defendant convicted of larceny by stealing can receive a sentence of up to 5 years in state prison, or up to 2 years in a county jail (House of Correction,) in addition to a fine of up to $25,000.00.

Assuming that the value of the stolen property is $250.00 or less, that constitutes a misdemeanor, and a defendant can be sentenced up to 1 year in a county jail or by a maximum fine of $300.00.

Situational factors surrounding the offense can also affect sentencing options. Punishment can be increased if the defendant is convicted of stealing property from a person who is disabled or who is age 60 years or more. In this circumstance, if the stolen property is valued at higher than $250.00, the sentencing possibilities can be as much as 10 years in state prison or a maximum of 2 years in a county jail, and/or a fine of up to $50,000.00. If the victim is age 60 or older and the property value is $250.00 or less, the sentence can be increased to 2.5 years in a county jail and/or a fine of up to $1,000.00.

Larceny, as far as statistics go, is one of the most common of the theft crimes prosecuted in Massachusetts. Regardless of the specific item stolen, larceny will be a component of the formal charge(s) filed against the defendant. If you have an experienced, talented Massachusetts criminal defense lawyer representing you, your odds of success increase dramatically. Making the right choice in this situation is critical. Call us 24 hours a day. 7 days a week at either ph.: (781) 320-0062, or Ph.: (617) 285-3600, or email our office now and we can discuss your legal options.

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