MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order revoking his probation. He principally argues that the judge considered unreliable hearsay evidence and that the Commonwealth failed to meet its burden of proving that he violated the conditions of his probation. We affirm.
Background. In June 2014 the defendant pleaded guilty to six counts of larceny over $250 and was sentenced to serve seven years’ probation. The defendant agreed that the restitution amount was $289,937.64. Following a hearing in June 2018 on the defendants ability to pay, the plea judge ordered the defendant to pay $250 per month for the next three years and “to turn over his own bank records and financials as outlined by the Commonwealth on the record, on a regular and continuing basis.”
In March 2019 the defendant was sent a notice of probation violation. The notice alleged that the defendant committed new offenses -- including larceny over $250 and using false pretenses in a credit transaction -- resulting in new indictments brought in Superior Court, and that he failed to keep the probation department apprised of his financial circumstances and address.
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After a hearing, the same judge who took the pleas found the defendant in violation of his probation and sentenced him to three years’ incarceration in State prison.
Discussion. 1. New criminal offenses. At the probation violation hearing, the Commonwealth presented the testimony of State Police Trooper Lisa Butner, who assisted for six months in the investigation that led to the new indictments against the defendant. In summary, Butners testimony was as follows. In January 2019 law enforcement officials interviewed an eighty-two year old man (victim) who reported that the defendant had “[t]ricked” him into signing lease or purchase contracts for three vehicles: a Land Rover, a Mercedes-Benz cargo van, and a Maserati Grand Turismo. The victim told the investigators that he had “no idea” he was signing contracts for these vehicles and believed instead that he was signing documents in his capacity as an officer of the defendants company, ABC Fine Rugs, Inc. The victim never drove any of the vehicles, which were later repossessed. He also reported that the defendant used his name to open credit card accounts without his permission.
The defendant argues on appeal that the judge abused her discretion by relying on Butners testimony because it consisted of hearsay evidence lacking “substantial indicia of reliability.” Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). We disagree. In assessing the reliability of hearsay evidence in a probation violation proceeding, a judge may consider the following factors:
“(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity.”
Id. Not all of these criteria need be satisfied for the hearsay to be deemed trustworthy and reliable. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010).
Here, the judge was within her discretion to conclude that the hearsay evidence had sufficient indicia of reliability. As the judge observed, Butner “consulted with other investigators who had engaged in an investigation and relayed information based on those professional conversations,” and she “testified from either authorized documents, business records that come in under the business records exception or documents that were accompanied by a keeper of the record affidavit.” These documents and records, which were admitted in evidence, corroborate the victims statements that he was unaware of the nature of the contracts he was signing. The contracts and related records show that the victim signed for all three vehicles in his capacity as an officer or employee of ABC Fine Rugs, Inc., yet, on each document, his address is listed as one of various residential addresses associated with the defendant. In addition, two of the contracts, dated one day apart, are inconsistent as to the victims job title and years of employment at ABC Fine Rugs, Inc., and at least one of the vehicles had no apparent utility for a rug business. It is also “a criminal offense to make a false report of a crime to a police officer,” a fact that “bolsters the reliability of the report[ ].” Commonwealth v. Nunez, 446 Mass. 54, 59 (2006), quoting Commonwealth v. Durling, 407 Mass. 108, 121 (1990). For all of these reasons, we discern no abuse of discretion in the judges conclusion that the hearsay evidence was substantially reliable.
The defendant argues in the alternative that, even considering the hearsay evidence, the Commonwealth failed to prove that he committed a new criminal offense. The preponderance of the evidence standard applies in probation violation hearings, see Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), and the Commonwealth met that burden here. Based on Butners testimony and the documents admitted in evidence, the judge could have found that it was more likely than not that the defendant fraudulently secured the victims signature on the contracts and thereby obtained the vehicles by false pretenses.
We also reject the defendants argument that the judge abused her discretion by excluding from evidence a letter that the defendant claimed was written by the victim. Although authentication rules are relaxed in probation violation hearings, the proponent of the evidence must still demonstrate its reliability. See Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 31-32 (2020). Here, the defendant tried to offer the letter through Butner, who testified that she had “no idea” what it was. As the defendant made no other attempt to authenticate the letter, the judge properly excluded it.
2. Failure to report finances. The defendant next argues that there was insufficient evidence that he failed to provide the probation department with accurate and updated financial information. Again, we disagree. The judge had before her the defendants most recent financial declaration, in which he reported having only $894 in his checking account, few other assets, and over one million dollars in liabilities. Yet two months later, the defendant signed a lease for a luxury apartment at 5 Fan Pier Boulevard in Boston, which required a monthly rent payment of $3,768, an initial payment of $2,066.32, and a $750 security deposit. The Commonwealth also offered evidence from which the judge could have inferred that the defendant paid the rent for a few months before falling behind. This was sufficient to show by a preponderance of the evidence that the defendant failed to accurately report his finances.
We disagree with the defendants contention that the term of his probation requiring him to turn over “bank records and financials ․ on a regular and continuing basis” is unconstitutionally vague. While due process requires that probationers receive fair warning of the requirements of their probation, “[p]robation conditions ․ need not provide the fullest warning imaginable.” Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006). It suffices that “[people] of common intelligence will know its meaning.” Id., quoting Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). Reading the condition here “with due regard to the circumstances in which it was imposed,” id., we conclude that the defendant had fair notice that he was required to report changes in his finances that might impact his ability to pay restitution.
3. Failure to update address. Finally, the defendant challenges the sufficiency of the evidence that he failed to report a change in his address. The Commonwealth offered ample evidence to meet its burden, including the lease for the 5 Fan Pier Boulevard apartment, police records showing that the defendant provided 5 Fan Pier Boulevard as his address during two traffic stops, and a certified record from the Registry of Motor Vehicles showing that he again provided 5 Fan Pier Boulevard as his address on an application to reinstate his license. The judge could have inferred from this evidence that the defendant lived at 5 Fan Pier Boulevard. Where it was uncontested that the defendant did not report that address to the probation department, the judge did not err in finding a violation on this basis.
Order revoking probation affirmed.
FOOTNOTES
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. The notice also alleged that the defendant committed the new offense of operating after suspension of a license, subsequent offense. The defendant makes no argument that the judge erred by finding a violation on this ground.