A case of felony larceny filed against two Vineyard women was dismissed by Judge Benjamin Barnes Friday morning on the grounds they were denied due process. Oak Bluffs residents Diane Capanigro and Kathleen Leblanc were accused of wrongfully taking a Caribbean cruise by themselves against the wishes of the person who paid for the cruise. Caponigro and Leblanc are former caregivers for Chilmark senior Barbara Roberts, who allegedly intended to travel with the two on the cruise but couldn’t due to injuries and allegedly didn’t authorize the two to go without her. Attorneys for the women said the cruise was a gift and no crime was committed. Attorney Dan Larkosh, who represents Caponigro, requested a bill of particulars from the Cape and Islands District Attorney’s Office. After reviewing it, he filed a motion to dismiss the case on the grounds that dates don’t match up between the complaint filed and the bill of particulars.
Larkosh told Judge Barnes the complaint filed against both Caponigro and Leblanc states the offense occurred in the month of May whereas the bill of particulars states it occurred in the month of January. Larkosh described the complaint as “procedurally defective” and that the defendants were “denied due process” because of it.
Attorney Matt Jackson, who represented Leblanc, said the evidence presented by the commonwealth doesn’t show his client committed larceny.
Assistant district attorney Matt Palazzolo argued a crime did occur and noted the alleged victim explicitly stated there was no plan for her caregivers to take the cruise without her.
“I think you placed yourself in a box because you issued a bill of particulars before the complaint was amended,” Judge Barnes told Palazzolo. He went on to say discrepancies between the complaint and the bill of particulars can’t simply be chalked up to as a scrivener’s error.
Judge Barnes allowed the motion to dismiss and extended it to both defendants. “The court is allowing it based on the procedural evidence…; the bill of particulars is not in concert with the date of offense in the complaint.” He went on to say the complaint wasn’t amended prior to the request for a bill of particulars “therefore denying the defendants their due process…”
He made note that the dismissal was without prejudice, which would allow charges to be potentially be refiled.