HomeUSAMan Who Stole WWII Veteran’s Purple Heart During Burglary Has Conviction Reduced

Man Who Stole WWII Veteran’s Purple Heart During Burglary Has Conviction Reduced

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The Massachusetts Supreme Judicial Court reduced the conviction of a Worcester man found guilty of stealing a Purple Heart from a World War II veteran’s son in a 2014 burglary.

In a Massachusetts Judicial Court and Appeals Court decision released Thursday, the court chose to reduce Nicholas Desiderio’s original conviction in the 2014 Leicester burglary from armed robbery while masked to unarmed robbery.

The courts said the original conviction was based on a joint venture theory, meaning a person is guilty if he willingly participates with another in a crime.

However, Superior Court Judge Richard T. Tucker failed to instruct the jury on what’s necessary to convict Desiderio on the charges in the joint venture theory.

The courts said prosecutors had to first prove that Desiderio knew at least one of his co-defendants was armed to be charged with armed home invasion. The prosecution also had to show that Desiderio knew at least one of his co-defendants was armed with a mask to be charged with armed robbery while masked.

Desiderio, who is a former employee of the house owner, waited outside and served as a getaway driver during the 2014 home invasion while two other men broke into the home, according to prosecutors.

“Where an element of a crime is omitted from the instructions, the jury are erroneously excused from applying the facts, as they find them, to that element,” the court’s decision read. “This creates a risk of conviction in circumstances where the Commonwealth failed to meet its burden of proof beyond a reasonable doubt as to the missing element. Our substantial risk of a miscarriage of justice analysis in these circumstances thus must be correspondingly exacting.”

Superior Court is set to resentence Desiderio for his amended conviction at a later date.

On Feb. 16, 2017, Desiderio and Timothy Lavin, were found guilty in the 2014 Leicester home invasion.

Authorities said two men broke into a home in the Cherry Valley section of Leicester on Jan. 5, 2014. Lavin was identified as one of the suspects. The second man in the break-in was never caught.

“The two men tied the hands of the victims — the owner, his daughter and her boyfriend — and put duct tape over their mouths before raiding a safe in the living room,” the Worcester County District Attorney’s Office said.

The suspects stole a Purple Heart award amongst other military medals given to the homeowner by his father. The homeowner’s father was a World War ll veteran who was injured in the battle of Iwo Jima.

Prosecutors said they also stole $50,000 out of the homeowner’s safe.

Lavin was sentenced to not less than 20 and no more than 22 years in prison, which will begin after the end of a 20-year sentence he is currently serving for a separate home invasion. He will not receive any credit for time served.

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