In an unpublished opinion the Appeals court on June 8, 2010 struck down a conviction of Malicious destruction of property over $250 in COMMONWEALTH vs. ROSALIE A. PIMENTEL 09-P-557 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In deciding the case the court stated “The Commonwealth concedes that it failed to introduce evidence at trial of the windows’ replacement cost. Accordingly, the evidence was insufficient, and the defendant’s conviction must be reduced to malicious destruction of property under $250. See Commonwealth v. Kirker,441 Mass. 226, 229 (2004). It does not follow, however, that restitution must be similarly capped at $250.
Following a criminal conviction, restitution may be imposed for ‘economic losses caused by the defendant’s conduct and documented by the victim.’Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002). The procedure must be ‘fair and reasonable,’ and the defendant ‘must have an opportunity to be heard and to cross-examine witnesses.’ Ibid., citing Commonwealth v. Nawn, 394 Mass. 1, 6-7 (1985). In determining appropriate restitution, ‘we look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted, or] to which the defendant entered a plea.’ Commonwealth v. McIntyre, supra at 835 (citation omitted). The Commonwealth bears the burden of ‘proving the amount of the loss by a preponderance of the evidence.’ See id. at 834. We review the trial judge’s assessment of restitution for an abuse of discretion or other error of law. See id. at 836. We discern neither in the restitution ordered here. In Commonwealth v. McIntyre, the defendant was convicted of assault and battery by means of a dangerous weapon. Id. at 831. Although his convictions were not based on the destruction of property, there was ‘no question that the damage to the victim’s car occurred during the course of an ongoing assault.’ Id. at 836. Because there was a ‘causal relationship between the criminal episode and the damage to the vehicle . . . the judge properly awarded restitution to cover the repairs.’ Ibid. Here, it is clear that the broken windows and smashed windshield likewise resulted ‘from the crime[s] of which the defendant was convicted.’ Ibid. There is no dispute that the defendant ‘was afforded a hearing and was able to cross-examine the witnesses against [her].’ Ibid.Thus, the only issue is whether the evidence before the judge as to repair costs was sufficient.
At the hearing, the Commonwealth submitted but did not introduce in evidence a written estimate that, while not on letterhead, contained ‘a phone number as well as a schedule of payment which include[d] the model for the windows, the warranties, [and] some specifics.’ Although the defendant was ‘entitled to rebut the victim’s estimate of the injury with [her] own experts or witnesses,’ she failed to do so. Id. at 834. Instead, the defendant now attacks the Commonwealth’s failure to comply with the formal rules of evidence in proving the amount. It was not required to do so, however, since there is ‘no requirement that strict evidentiary rules apply at restitution hearings.’ Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 755 (2006). ‘[A] restitution hearing must be flexible in nature and all reliable evidence should be considered.’ Id. at 756. ‘[H]earsay, if reliable, is admissible to carry the Commonwealth’s burden at a restitution hearing.’ Ibid. The written estimate was properly put before the judge, and we discern no abuse of discretion in his reliance upon it when setting the amount of restitution.
The defendant also claims error in the prosecutor’s closing argument and asserts that her trial counsel was ineffective. For substantially the reasons set forth in the Commonwealth’s brief, respectively, at pages ten through fourteen and eighteen through nineteen, these contentions are unpersuasive.
The judgment on the charge of vandalism is affirmed. So much of the judgment on the charge of malicious destruction of property as determined that the property damage was over $250 is reversed and the finding is set aside; the remaining portion of that judgment, finding the defendant guilty of malicious destruction of property under $250, is affirmed and so much of the sentence on that charge as provides for restitution is to stand, however, the balance of that sentence is vacated and the case is remanded solely for resentencing in accordance with this memorandum and order”
rule 1:28 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 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. However, the issue of proof regarding whether the value of the item was over or under $250 again sinks a case. The simple rule to apply is: when in doubt if the item is valued over or under $250 simply charge them with G.L. 266 sect. 126a instead of sect. 127. The value of the item is not at issue in satisfying the former.
Attorney Ronald A Sellon