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Middlesex Superior Court Judge Thomas P. Billings last week denied a request to drop the charge, finding a grand jury was warranted to indict former Framingham Police Officer Alan Dubeshter on both counts.
Dubeshter, who is accused of stealing thousands of dollars worth of cash from the police department, faces charges of larceny over $250 and using his position as a police officer to secure an unwarranted privilege for himself.
With a trial still pending in Middlesex Superior Court, Dubeshter's lawyer, Michael Kelly, filed a motion in late August seeking to dismiss the latter charge. Kelly contended there is no evidence Dubeshter solicited or received anything of substantial value, or used his position to receive special perks.
Kelly also argued his client can't be convicted on both charges because they are mutually exclusive: If Dubeshter stole money from the evidence room, as prosecutors allege in the larceny charge, he cannot also be guilty of receiving it as stolen property, Kelly argued.
In a two-page ruling, Billings credited his interpretation of the law, but upheld the indictments, writing that a jury will weigh the evidence and decide between the two charges, or acquit Dubeshter on both.
Billings cited legal precedent in place in Massachusetts since at least the Reagan administration that holds a grand jury is "not necessarily precluded from finding probable cause" to indict a defendant for both larceny and receiving stolen goods.
"The same logic applies to this case," Billings wrote.
Dubeshter, a 30-year veteran of the Framingham Police Department, was previously in charge of receiving, cataloging and maintaining evidence in criminal cases. He came under investigation on Sept. 18, 2015 after police allegedly discovered six envelopes from the evidence room inside his personal truck, according to the judge's ruling.
The envelopes — typically used to store cash seized in criminal cases — had been cut open at the bottom, and all but $41 of the currency supposedly inside was missing, Billings wrote. Police secured a warrant and returned the following day, allegedly finding two more envelopes inside the truck. An audit later determined that more than $73,800 was missing from the evidence room, Billings wrote.
Dubeshter was placed on leave Sept. 21, 2015 and resigned seven months later. He pleaded not guilty to two criminal charges at his March 2017 arraignment.
Dubeshter's trial was scheduled to begin Thursday, but was postponed at his request, according to court records. A bail hearing has been scheduled for Oct. 18.
Jim Haddadin can be reached at 617-863-7144 or . Follow him on Twitter: @JimHaddadinRead Next Login with: