Commonwealth v. Christopher Alimonti.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-666

COMMONWEALTH

vs.

CHRISTOPHER ALIMONTI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a District Court bench trial, the defendant was

convicted of larceny over $1,200 by false pretenses and placed

on three years of probation with a condition to pay the victims

$15,000 in restitution. On appeal, the defendant challenges the

sufficiency of the evidence and the order of restitution. We

affirm.

Discussion. 1. Sufficiency of evidence. We review the

denial of a motion for a required finding of not guilty to

determine "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt" (citation omitted). Commonwealth v. Latimore,
378 Mass. 671, 677 (1979). To prove the crime of larceny by

false pretenses, the Commonwealth must establish that "(1) a

false statement of fact was made; (2) the defendant knew or

believed that the statement was false when he made it; (3) the

defendant intended that the person to whom he made the false

statement would rely on it; and (4) the person to whom the false

statement was made did rely on it and, consequently, parted with

property." Commonwealth v. Cheromcka, 66 Mass. App. Ct. 771,

776 (2006).

Here, the evidence presented by the Commonwealth at trial

allowed the judge to find that the defendant falsely represented

that he was a licensed home improvement contractor, and that he

knew this was a false statement when he made it. At their

initial meeting with the defendant, the homeowners specifically

asked whether he was licensed and insured. The defendant

responded, "Yes, absolutely." Nonetheless, he obtained a permit

using his brother's construction license and a forged signature

of the homeowner. Moreover, after the defendant ceased working

on the project, the homeowners attempted to investigate the

status of the defendant's contractor's license and found that he

received his license years after he worked on their project.

Additionally, the evidence allowed the judge to find that

the defendant falsely represented that he would start on a

project to build a cabana right away and that he knew this was a

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false statement when he made it. The defendant said, "We got

about five days of good weather. If you give me 15,000 for the

cabana, I can start the cabana. We can get the footing and

foundation in, and I can always build it as the weather

changes." Although the defendant said he would start

immediately to take advantage of the good weather, he went to

Florida during the good weather and then blamed permitting

issues and poor weather conditions for putting off the cabana

project to the spring, ultimately never doing the project.

There was also evidence that the homeowners relied on these

false representations in giving the defendant $15,000. At their

initial meeting, the homeowners repeatedly asked the defendant

about his status as a licensed contractor, thereby demonstrating

the importance the homeowners placed on it. Additionally, the

parties discussed a range of renovation projects but drew up a

contract specifically regarding the cabana project with a

$15,000 deposit, again demonstrating the significance of getting

the cabana underway.

That the defendant intended the homeowners to rely on his

false representations can be inferred from his surreptitious

behavior. See Commonwealth v. Jerome, 56 Mass. App. Ct. 726,

732 (2002) (intent typically inferred from circumstantial

evidence). The defendant could have told the homeowners that he

needed to use someone else's license to get the permit but that

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he could still do the job. He also could have told the

homeowners that, if the cabana project could not be started

right away, it would have to wait until the spring. But, if he

did so, the homeowners were not likely to have hired him and

parted with their $15,000. In addition to their insistence that

their contractor be licensed, the homeowners planned to move

into the house by mid-April and expected the construction to be

completed before they moved in. The evidence was sufficient to

allow the judge to find that every element of the charged

offense was proven.

On appeal, the defendant contends that the judge

erroneously inferred the defendant's intent to defraud from the

fact that the cabana was never completed. See Commonwealth v.

True, 16 Mass. App. Ct. 709, 711 (1983) (deception as to intent

cannot be inferred from mere nonperformance). He argues that

the defendant did substantial other construction work for the

homeowners such that it cannot reasonably be inferred that he

never intended to build the cabana. He likens this case to

Commonwealth v. Long, 90 Mass. App. Ct. 696, 701 (2016), where

this court reversed a conviction of larceny by false pretenses

on evidence that the defendant accepted a deposit and then began

a construction project but abandoned it. In that case, the

defendant made no particular representation except that implied

in the contract. In other words, by entering into a contract to

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install windows, he promised that he would install windows.

After the relationship between the homeowners and the defendant

soured within a couple of days, the defendant stopped work and

gave the homeowners a final bill which included the cost of

windows that were never installed. We held that evidence was

insufficient to establish that the defendant harbored the intent

never to install the windows at the time he agreed to do so.

By contrast here, the defendant's representations went

beyond the implied promise to fulfill his contractual

obligations. Rather, there was evidence of specific

representations that the defendant must have known to be false

at the time he made them -- that he was a licensed contractor

and that he would start on the cabana right away to take

advantage of the good weather. Although the parties discussed

other renovation work, the only work that got reduced to writing

ahead of the work was the cabana. For the remaining work, the

defendant would simply ask for more money and the homeowners

would give it until they lost track of what expenditures were

associated with what work and had paid the defendant in excess

of $100,000.

At the homeowners' insistence for clarity, the defendant

prepared a document regarding the ongoing construction expenses

in the winter of 2018. Unbeknownst to the homeowners, however,

the contract filed with the building department in December 2017

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listed a job valued at $182,000. That contract, which contained

a forged homeowner signature, had not been presented to the

homeowners. On these facts, the judge reasonably concluded that

the defendant's false representations concerning his licensing

status and the cabana project were made so that he could get

into the house for the more lucrative work. The evidence was

sufficient to allow the judge to conclude that the defendant

made knowingly false statements of fact intending to have the

homeowners rely on them and that the homeowners did rely on them

in parting with their $15,000. There was no error in the denial

of the defendant's motion for a required finding of not guilty.

2. Restitution. We review orders of restitution for abuse

of discretion or error of law. See Commonwealth v. Buckley, 90

Mass. App. Ct. 177, 180 (2016). An order of restitution is

limited to an amount of money that is both representative of the

actual loss suffered by the victim, and sufficiently documented.

Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001). The victim

cannot receive more than that proven amount. Commonwealth v.

Henry, 475 Mass. 117, 129 (2016). However, it is widely

accepted that "some degree of approximation" is permitted, and

that "mathematical precision" is not required. Buckley, supra

at 185.

In this case, the judge ordered the defendant to pay the

homeowners $15,000. Although the evidence showed that the

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defendant obtained only $9,000 for the work he did not perform,

restitution for larceny is not limited to the amount stolen by

the defendant. See Commonwealth v. McIntyre, 436 Mass. 829, 835

(2002). Rather, restitution may include any economic losses "so

long as the restitution is significantly causally related to the

crime of conviction." Commonwealth v. Palmer P., 61 Mass. App.

Ct. 230, 232 (2004). Here, as stated, the defendant used his

false representations not only to obtain the $9,000 deposit but

also to get the victims to hire him for additional projects that

he failed to complete in a professional manner. The husband

homeowner testified that "a lot of things had to be changed" and

that he had to pay the subcontractors separately. The wife

homeowner testified that it ultimately would cost approximately

$17,000 to correct the additional work that the defendant

secured only through his criminal actions. Restitution of

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$15,000 was well within the economic losses "causally related"

to the defendant's criminal conduct. Id.

Judgment affirmed.

By the Court (Ditkoff,
Singh & Hodgens, JJ. 1),

Clerk

Entered: September 18, 2024.

1 The panelists are listed in order of seniority.

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