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Criminal Law & Procedure

Criminal Law Supreme Court Opinion

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2972

SC19818 - State v. Porter (Assault of public safety personnel; interfering with officer; possession of narcotic substance; "The sole question presented in this appeal is whether a court may look to the evidence presented at trial when determining if a defendant's conviction violated the constitutional prohibition against double jeopardy. The defendant, Kenneth Porter, appeals from the judgment of the Appellate Court affirming his judgment of conviction, following a jury trial, of assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a. State v. Porter, 167 Conn. App. 281, 283–84, 142 A.3d 1216 (2016). The defendant claims that the Appellate Court could review only the charging documents when determining whether his conviction of both charges violated the prohibition on double jeopardy and that it improperly looked to the evidence presented at trial to make that determination. The state counters that State v. Schovanec, 326 Conn. 310, 163 A.3d 581 (2017), permits the review of evidence in double jeopardy analysis for the limited purpose of deciding whether the offenses stem from the same act or transaction, and that it was proper for the Appellate Court to consider evidence in that analysis. We agree with the state that the Appellate Court properly considered the evidence presented at trial and, accordingly, affirm its judgment.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2965

AC39039 - State v. Kukucka (Strangulation in first degree; sexual assault in third degree; assault in third degree; "The defendant, Dale Kukucka, appeals from the judgment of conviction, rendered after a jury trial, of strangulation in the first degree in violation of General Statutes § 53a-64aa (a) (1) (B), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the defendant claims that the trial court improperly (1) failed to inquire into a potential conflict of interest between him and his defense counsel due to the existence of a grievance filed against defense counsel by the defendant and (2) denied his motion to suppress the in-court and out-of-court identifications of him made by a witness to the assault. We affirm the judgment of the trial court.")

AC40020 - State v. Artiaco (Sexual assault in first degree; risk of injury to child; "The defendant, William A. Artiaco, appeals from the judgments of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the trial court abused its discretion in precluding the testimony of his expert witness and (2) he was deprived of a fair trial due to prosecutorial impropriety during closing argument. We disagree and, accordingly, affirm the judgments of conviction.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2950

AC39506 - State v. Liebenguth (Breach of peace in second degree; tampering with witness; "The defendant, David G. Liebenguth, was convicted, following a bench trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (5) and tampering with a witness in violation of General Statutes § 53a-151. The charges were filed in connection with an angry confrontation between the defendant and a parking authority officer who had issued him a parking ticket, and a subsequent e-mail from the defendant to the officer's supervisor, suggesting why the officer should not appear in court to testify against him. The defendant now appeals, claiming that the evidence adduced at trial was insufficient to support his conviction of either charge. We affirm in part and reverse in part the judgment of the trial court.")

AC40233 - State v. Rivera (Capital felony; conspiracy to commit murder; "The defendant, Angel Rivera, appeals from the judgment of conviction, rendered following a jury trial, of capital felony, in violation of General Statutes (Rev. to 2011) §§ 53a-54b (7) and 53a-8 (a), and conspiracy to commit murder, in violation of General Statutes (Rev. to 2011) §§ 53a-54a (a) and 53a-48 (a). On appeal, the defendant claims that the trial court abused its discretion by declining to admit certain oral statements under the residual exception to the hearsay rule. We affirm the judgment of the trial court.")

AC38888 - State v. Andaz (Violation of probation; "The defendant, Dave Andaz, also known as David Polek, appeals from the judgment of the trial court finding him in violation of his probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that his due process right to fair notice of the charges against him was violated by the state's filing of a substitute information changing the underlying basis for his violation of probation six days prior to his probation revocation hearing. We disagree and, accordingly, affirm the judgment of the trial court.")



Criminal Law Supreme Court Opinion

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2949

SC19708 - State v. Cushard (Robbery first degree; assault first degree; burglary first degree; "In this certified appeal, we consider whether the defendant is entitled to a new trial following an allegedly inadequate waiver of the right to counsel. The defendant, Robert Cushard, was charged with crimes stemming from the robbery of an antiques dealer in New Hartford. Several months before his trial, the defendant moved to discharge his appointed public defender and to represent himself. The trial court granted the motion after canvassing the defendant about his decision. About four months later, the trial court canvassed the defendant a second time about whether he wanted to represent himself, and the defendant maintained that he did. After a trial, a jury found him guilty of certain crimes in connection with the robbery, and the trial court rendered judgment consistent with the verdict.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming in part that his initial waiver of the right to counsel was not knowing and voluntary because the first canvass was inadequate and that he was thus deprived of his sixth amendment right to counsel. He argued that a new trial was mandated as a remedy for this alleged sixth amendment violation without the need to show any harm. The Appellate Court agreed that the first canvass was deficient but declined to grant a new trial. State v. Cushard, 164 Conn. App. 832, 840, 137 A.3d 926 (2016). Instead, the Appellate Court concluded that the error in the first canvass was subject to harmless error analysis. Id., 855. According to that court, reversing the judgment was unnecessary because the defendant's lack of counsel before trial was harmless inasmuch as he was canvassed a second time, before trial, and maintained his choice to represent himself; therefore, the defendant had failed to identify any harm flowing from his earlier, inadequate waiver of the right to counsel that rendered his trial fundamentally unfair. Id., 855–57.

We do not consider whether the defendant had knowingly and voluntarily waived the right to counsel after the first canvass because we agree with the Appellate Court that any error in the court's acceptance of his waiver of the right to counsel following that canvass was subject to harmless error review and was harmless beyond a reasonable doubt as a result of the second, adequate canvass. We therefore affirm the judgment of the Appellate Court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2943

AC40232 - State v. Davis (Sexual assault in second degree; delivery of alcohol to minor; "The defendant, Jarah Micah Davis, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3) and one count of delivery of alcohol to a minor in violation of General Statutes § 30-86 (b) (2). On appeal, the defendant claims that (1) the evidence admitted at trial was not sufficient to prove beyond a reasonable doubt that the alleged victim was physically helpless within the meaning of General Statutes § 53a-65 (6) as required for a conviction of sexual assault in the second degree, and (2) the trial court improperly denied his pretrial motion to dismiss the second count of the state's substitute information charging him with sexual assault in the second degree. We disagree and, accordingly, affirm the judgment of the trial court.")

AC39072 - State v. Bagnaschi (Breach of peace in second degree; "The defendant, Mary E. Bagnaschi, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support her conviction, (2) the trial court improperly denied her request for a probable cause hearing, (3) the court improperly denied her motion to dismiss, which was based on her assertion that she was unlawfully arrested in her home without a warrant, (4) the court improperly violated her constitutional right to present a defense and (5) the court improperly failed to recuse itself. We disagree and, accordingly, affirm the judgment.")

AC38880 - State v. Frazier (Operating motor vehicle while under influence of intoxicating liquor; "The defendant, John A. Frazier, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1). Additionally, following a plea of nolo contendere, the defendant was convicted under a part B information of being a second offender in violation of General Statutes § 14-227a (g) (2). The defendant claims that (1) the evidence was insufficient to prove his guilt under § 14-227a (a) (1), (2) the trial court improperly admitted certain evidence in the state's case, and (3) the court infringed on his right to testify. We affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2937

AC40234 - State v. Swilling (Kidnapping in first degree; home invasion; assault in second degree; "The defendant, Ricardo Swilling, appeals from the judgment of conviction, rendered following a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), home invasion in violation of General Statutes § 53a-100aa (a) (2), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). Additionally, following the defendant's pleas of nolo contendere, the defendant was convicted of two counts of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a) (1), as alleged in part B informations that were related to the kidnapping and home invasion charges. The defendant claims that (1) the trial court violated his due process right to a fair and impartial trial by questioning two witnesses during the state's case-in-chief, (2) the court improperly permitted the victim to make an in-court identification of him absent a showing that she previously had made a nonsuggestive out-of-court identification of him, (3) the court improperly admitted evidence of his prior felony convictions, (4) the court improperly admitted a recording of a 911 call made by the victim, and (5) the cumulative effect of the court's errors deprived him of his right to a fair and impartial trial. We affirm the judgment of the trial court.")

AC40238 - State v. Small (Murder; burglary in first degree; larceny in third degree; larceny in fourth degree; stealing firearm; criminal possession of firearm; sale of narcotics; possession of narcotics; "The defendant, Carl Small, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a (a), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), larceny in the third degree in violation of General Statutes § 53a-124 (a) (1), larceny in the fourth degree in violation of General Statutes § 53a-125 (a), stealing a firearm in violation of General Statutes § 53a-212, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), sale of narcotics in violation of General Statutes § 21a-277 (a), and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that: (1) the trial court abused its discretion in admitting evidence of criminal gangs; (2) he was deprived of his constitutional right to a fair trial by prosecutorial improprieties; and (3) the court abused its discretion in denying his motion for a new trial. We affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2925

AC40398 - State v. Smith (Motion to correct illegal sentence; kidnapping in first degree; felony murder; robbery in first degree; manslaughter in first degree; "The defendant, Jeffrey Smith, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant argues that the court abused its discretion in denying his motion. Specifically, the defendant claims that his sentence violates his fifth amendment protection against double jeopardy, which is applied to the states through the fourteenth amendment to the United States constitution. The defendant also argues that the principles our Supreme Court established in State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), and State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015), should be applied retroactively to the circumstances of his case. We affirm the judgment of the trial court.")

AC38647 - State v. Hudson (Conspiracy to commit assault in first degree; "The defendant, Anthony Hudson, appeals from the judgment of conviction rendered against him following a jury trial on the charge of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1). On appeal, the defendant claims that there was insufficient evidence to support his conviction. We disagree, and thus affirm the judgment of the trial court.")

AC39335 - State v. Louis D. (Criminal possession of firearm; criminal violation of protective order; "The defendant, Louis D., appeals from the judgments of conviction, rendered after a jury trial, of three counts of criminal violation of a protective order in violation of General Statutes § 53a-223 (a) and one count of criminal possession of a firearm in violation of General Statutes (Supp. 2014) § 53a-217 (a) (4) (A) arising out of three separate informations. On appeal, the defendant claims that the trial court improperly (1) consolidated the three informations for trial, and (2) denied his motion for a judgment of acquittal. We disagree and, accordingly, affirm the judgments of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=2918

AC39723 - State v. Angel M. (Sexual assault in first degree; attempt to commit sexual assault in first degree; risk of injury to child; "The defendant, Angel M., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the trial court erred by admitting uncharged sexual misconduct evidence, (2) the prosecutor engaged in impropriety that deprived him of the constitutional right to a fair trial, and (3) the trial court violated his right to due process at sentencing by penalizing him for exercising his fifth amendment privilege against self-incrimination. Although we agree with the defendant that one of the prosecutor's comments was improper, we, nevertheless, conclude that the defendant was not deprived of his due process right to a fair trial. We reject the defendant's other claims, and we, accordingly, affirm the judgment of the trial court.")

AC39797 - State v. Walker (Felony murder, manslaughter in first degree with firearm, attempt to commit robbery in first degree; criminal possession of pistol or revolver; "The defendant, Eugene L. Walker, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a-54c; manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a); attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2); and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1). The defendant claims that the trial court (1) violated his right to confrontation by permitting a laboratory analyst to testify regarding a known DNA sample processed by another analyst in the same laboratory; (2) violated his right to due process when it declined to either strike certain testimony or grant the defendant's motion for a mistrial; (3) erred in admitting certain testimony under the coconspirator exception to the hearsay rule; (4) erred in denying his motion to sever his trial from that of his codefendant; (5) erred in admitting certain evidence at trial; and (6) violated double jeopardy by convicting him of both manslaughter and felony murder. We affirm the judgment in part, and we reverse the judgment in part.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1913

AC39690 - State v. Smith (Sexual assault in fourth degree; risk of injury to child; sexual assault in first degree; sexual assault in second degree; "The defendant, Ronald G. Smith, appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A),six counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), six counts of risk of injury to a child in violation of § 53-21 (a) (1), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). On appeal, the defendant, relying upon Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L. Ed. 2d 91 (1976), claims that the state violated his constitutional right to remain silent when it introduced evidence of the defendant’s post-Miranda silence. We conclude that any claimed error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgments of the trial court.")

AC40059 - State v. Soyini (Murder as accessory; conspiracy to commit murder; "The defendant, Quan Soyini, appeals from the judgment of conviction, rendered after a jury trial, of being an accessory to murder in violation of General Statutes §§ 53a-54a and 53a-8 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48. On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction of both crimes, (2) the court’s improper jury instructions violated his right to a fair trial and (3) the court committed plain error by giving a special credibility instruction on accomplice testimony, which was unwarranted in this case. We disagree and, accordingly, affirm the judgment of conviction.")


Criminal Law Appellate Court Opinions

   by Mazur, Catherine

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1904

AC39844 - State v. Daniel W. ("The defendant, Daniel W., appeals from the judgment of conviction, rendered after a jury trial, of six counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2); five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2); one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (2) and 53a-49; one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A); one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1); one count of conspiracy to commit risk of injury to a child in violation of General Statutes §§ 53-21 (a) (2) and 53a-48; and one count of attempt to commit risk of injury to a child in violation of General Statutes §§ 53-21 (a) (2) and 53a-49. On appeal, the defendant claims that (1) the trial court improperly admitted evidence of his prior misconduct; (2) the trial court improperly allowed a constancy of accusation witness to testify as an expert regarding delayed disclosure; and (3) the prosecutor committed improprieties that deprived the defendant of his right to a fair trial. We disagree and, accordingly, affirm the judgment of the trial court.")

AC39400 - State v. Lima ("The defendant, Evandro M. Lima, appeals from the judgment of the trial court denying his motion to vacate his conviction following his guilty plea to one count of conspiracy to commit larceny in the sixth degree in violation of General Statutes §§ 53a-48 and 53a-125b. The defendant claims that the trial court abused its discretion in denying his motion because, under General Statutes § 54-1j, the court was required but failed to ask the defendant whether he understood the possible immigration consequences of pleading guilty before accepting his plea. We agree with the defendant and reverse the judgment of the trial court.")

AC39808 - State v. Moore ("The defendant, Jerome F. Moore, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court incorrectly concluded that (1) the 2015 amendment to General Statutes § 21a-279 (a), which the legislature passed during a special session in June, 2015; see Public Acts, Spec. Sess., June, 2015, No. 15-2, § 1; does not apply retroactively to his sentence, and (2) his five year sentence does not violate the eighth amendment to the United States constitution or article first, §§ 8 and 9, of the Connecticut constitution. We affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1895

AC38667 - State v. Robert S. (Criminal violation of protective order; sufficiency of evidence; "The defendant, Robert S., appeals from the judgment of conviction, rendered after a jury trial, of one count of criminal violation of a protective order in violation of General Statutes § 53a-223. On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to support his conviction, and (2) the trial court denied him due process by using, and denying him the opportunity to contest, unreliable information during sentencing. We affirm the judgment of the trial court. ")

AC39613 - State v. Pecor (Robbery in second degree; "The defendant, Gary Alan Pecor, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly determined that it did not have jurisdiction to address his motion to correct. He also claims that this court should find, as matter of law, that his sentence is illegal and remand the case to the trial court with direction to resentence him as he has requested. The state agrees that the trial court incorrectly dismissed the defendant's motion to correct, but argues that the defendant's claim of illegality is barred by the doctrine of res judicata. The state asks this court to reverse the judgment of the trial court and remand the case with instruction that the court deny the defendant's motion, or, in the alternative, that this court remand the case to the trial court for a hearing on the merits. We agree with the parties that the trial court erred in dismissing the defendant's motion for lack of subject matter jurisdiction. We disagree, though, that res judicata precludes the defendant's claim. We also disagree with the defendant that we should address the merits of his claim on the basis of the record before us. Accordingly, we reverse the judgment of the trial court, and remand the case for a hearing on the merits of the defendant's motion to correct an illegal sentence. ")

AC39781 - State v. Bobe (Sexual assault in second degree; risk of injury to child; "The defendant, Anibal Bobe, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and of injury to a child in violation of General Statutes § 53-21 (a) (1), and risk of injury to a child in violation of § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly admitted into evidence hearsay and double hearsay through the testimony of the victim. We conclude that any claimed error was harmless and, accordingly, affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinion

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1887

AC38103, AC38104, AC38105 - State v. Smith (Operating motor vehicle while under influence of intoxicating liquor or drugs; tampering with witness; "In these consolidated appeals, the defendant, Brian Smith, appeals from the judgments of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or any drug in violation of General Statutes § 14-227a (a) (1), and tampering with a witness in violation of General Statutes § 53a-151 (a). The defendant claims that (1) the evidence was insufficient to convict him of operating a motor vehicle while under the influence of intoxicating liquor or any drug and (2) the court erroneously admitted certain evidence relating to the witness tampering count. We affirm the judgments of the trial court."


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1881

AC40237 - State v. Salmond (Murder; criminal possession of pistol or revolver; "The defendant, Dennis Salmond, appeals from the judgment of conviction of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 2013) § 53a-217c (a) (1). On appeal, the defendant claims that the trial court (1) violated his constitutional right to due process by denying his motion to suppress an eyewitness' in-court identification of him, and (2) abused its discretion by denying his request for a special credibility instruction with respect to the testimony of that eyewitness. We disagree and, accordingly, affirm the judgment of the trial court.")

AC38915 - State v. Antwon W. (Sexual assault in first degree in violation of statute (§ 53a-70 [a] [1] and [2]); sexual assault in third degree; risk of injury to child; "The defendant, Antwon W., appeals from the judgment of the trial court dismissing his second motion to correct an illegal sentence, in which he claimed that the sentencing court improperly relied on inaccurate and unreliable information in sentencing him on three counts of sexual assault in the first degree under General Statutes § 53a-70 (a) (1) because those sentences were imposed upon him before the vacatur, on grounds of double jeopardy, of his three parallel convictions of and associated concurrent sentences for sexual assault in the first degree under § 53a-70 (a) (2) based upon the same underlying sexual assaults. We reject the defendant's claim that the court relied upon inaccurate information in sentencing him, but conclude that the form of the judgment is improper and, therefore, remand this case with direction to deny the defendant's motion to correct an illegal sentence.")

AC39368 - State v. Richard P. (Sexual assault in fourth degree; risk of injury to child; "The state of Connecticut appeals from the judgment of dismissal rendered by the trial court after the state entered a nolle prosequi in a criminal case charging the defendant, Richard P., with various offenses arising from his alleged physical and sexual abuse of two of his children. The state claims that the court improperly dismissed the case because it had sufficiently represented to the court that a material witness had "died, disappeared or become disabled" within the meaning of General Statutes § 54-56b and Practice Book § 39-30. We are not persuaded and, therefore, affirm the judgment of the court.")


Criminal Law Supreme Court Opinion

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1873

SC19725 - Jones v. State ("In October, 1990, the petitioner, Melvin Jones, was arrested and charged with the murder of Wayne Curtis, who had been found shot to death in New Haven just a few days before the petitioner's arrest. The case was tried to a jury, which found the petitioner guilty. Nearly twenty years after the crime occurred, in 2010, certain pieces of evidence from the petitioner's trial were tested for the presence of DNA pursuant to an agreement with the state. He later relied on that testing to petition for a new trial on the basis of newly discovered evidence. In his petition, he claimed that the new DNA testing demonstrated that he did not commit the murder. The trial court disagreed, concluding that the new DNA results, although valid, failed to establish that the new evidence would likely produce a different result in a new trial. The Appellate Court, reviewing the trial court's decision for an abuse of discretion, upheld that decision. Jones v. State, 165 Conn. App. 576, 604, 140 A.3d 238 (2016).

In his certified appeal to this court, the petitioner contends that the Appellate Court should have engaged in a de novo review of whether the new evidence was likely to produce a different result. He argues that de novo review is appropriate because the credibility of the new evidence is undisputed, requiring only the application of the legal standards to the facts found by the trial court. He further asserts that, had the Appellate Court properly engaged in a de novo review, it would have decided the case in his favor.

We agree with the petitioner that de novo review is appropriate in the specific circumstances of this case, namely, when the petition for a new trial is decided by a judge who did not preside over the original trial and no fact-finding was necessary because both parties agreed that the new evidence was fully credible. Applying a de novo standard of review, we nevertheless disagree that the petitioner is entitled to a new trial. We therefore affirm the Appellate Court's judgment.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=1869

AC36832 - State v. Blaine (Conspiracy to commit robbery in first degree; "This case returns to us on remand from our Supreme Court with direction to consider the claim of plain error raised by the defendant, Jayevon Blaine, in light of State v. McClain, 324 Conn. 802, 155 A.3d 209 (2017). The defendant previously appealed from the judgment of conviction of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). We held in our prior opinion that the waiver of a claim of instructional error pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), precluded review of the claim of plain error. State v. Blaine, 168 Conn. App. 505, 517–19 and n.5, 147 A.3d 1044 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618 (2017). In State v. McClain, supra, 815, our Supreme Court held that a Kitchens waiver did not preclude a claim of plain error. We now consider the defendant's claim that the trial court committed plain error by incorrectly instructing the jury on the requisite intent to find him guilty of conspiracy to commit robbery in the first degree. We conclude that the record does not support the claim that the pertinent instruction constituted plain error. Accordingly, we affirm the judgment of the trial court.")

AC39200 - State v. Anthony L. (Sexual assault in first degree; risk of injury to child; sexual assault in third degree; "The defendant, Anthony L., was convicted, after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2). On appeal, the defendant claims that (1) the trial court abused its direction in admitting evidence of uncharged misconduct and (2) there was insufficient evidence to support his conviction on all three charges. We disagree, and, accordingly, affirm the judgment of the trial court.")

AC38953 - State v. Juarez (Conspiracy to commit murder; attempt to commit murder; "The defendant, Miguel Juarez, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a. On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction of either charge, and (2) the state failed to prove the charges of which he was convicted as they were set forth in its long form information. We affirm the judgment of the trial court.")


Criminal Law Supreme Court Opinion

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=867

SC19772 - State v. Panek ("The defendant, John Panek, was accused of engaging in sexual activity with a woman in his home and, while doing so, making a video recording of the encounter without the woman's knowledge or consent. He was accused of doing the same thing on at least two other occasions with two other women. In three separate informations, the state charged the defendant with violating General Statutes (Rev. to 2009) § 53a-189a (a) (1). This section generally prohibits a person from, knowingly and with malice, video recording another person "(A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy . . . ." General Statutes (Rev. to 2009) § 53a-189a (a) (1). The present appeal concerns the meaning of the element requiring that the victim be "not in plain view" when she is recorded. General Statutes (Rev. to 2009) § 53a-189a (a) (1) (B). More specifically, we are asked to determine to whose plain view the statute refers.

The defendant moved to dismiss the informations on the ground that the "not in plain view" element refers to the plain view of the defendant. He asserted he could not be charged or convicted under this statute for his conduct because each of the women he was with was within his plain view at the time he recorded them. The state responded that the "not in plain view" element of § 53a-189a (a) (1) referred instead to the perspective of the general public and that, because the defendant and the victim were inside his home at the time, they were "not in plain view" of the public when the alleged offenses occurred. The trial court concluded that the statute plainly and unambiguously referred to the plain view of the defendant and dismissed the informations. The Appellate Court affirmed the judgments of dismissal. State v. Panek, 166 Conn. App. 613, 635, 145 A.3d 924 (2016).

Contrary to the trial court and Appellate Court, we conclude that the text of § 53a-189a (a) (1) plausibly could refer to either the plain view of the defendant or the general public, rendering the statute ambiguous. Consulting extratextual sources, we are persuaded that the "not in plain view" element refers to the general public. We also reject the defendant's alternative ground for affirming the judgment of the Appellate Court, namely, that the "not in plain view" element is unconstitutionally vague or overbroad. We therefore reverse the Appellate Court's judgment.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=861

AC38762 State v. Esquilin (Violation of probation; reviewability of unpreserved claim that trial court violated defendant's right to due process by admitting drug test reports into evidence without requiring state to introduce results through testimony of analysts who performed testing; "The defendant, Kason U. Esquilin, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and imposing a four year prison sentence. On appeal, the defendant claims that the court deprived him of his right to due process by admitting into evidence reports of the results of drug tests performed on urine samples collected from the defendant, without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing. We conclude, in accordance with State v. Polanco, 165 Conn. App. 563, 571, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016), that this claim was not preserved and that the record is inadequate to review it pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). Accordingly, we affirm the judgment of the trial court.")

SC19900 - State v. Josephs (Cruelty to animals; "This case requires us to examine the meaning of language used in General Statutes § 53-247 (a), a provision that criminalizes a broad range of acts of cruelty to animals. The defendant, Delano Josephs, appeals from the judgment of conviction of a single violation of § 53-247 (a), stemming from his shooting of his neighbor's cat with a BB gun.The defendant claims that (1) the trial court improperly concluded that the clause of § 53-247 (a) applicable to his conviction, which bars a person from "unjustifiably injur[ing]" an animal, requires only a general intent to engage in the behavior causing the injury, (2) the phrase "unjustifiably injures" in § 53-247 (a) is unconstitutionally vague both facially and as applied to the facts of this case and (3) the evidence was insufficient to support the defendant's conviction pursuant to § 53-247 (a). We disagree with each of these claims and, accordingly, affirm the judgment of conviction.")

SC18072 - State v. Campbell ("The defendant, Jessie Campbell III, appeals, following a trial to a jury, from the judgment of conviction of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8), two counts of murder in violation of General Statutes (Rev. to 1999) § 53a-54a (a), attempt to commit murder in violation of General Statutes (Rev. to 1999) §§ 53a-49 (a) (2) and 53a-54a (a), assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-59 (a) (1), and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1999) § 53a-217c (a) (1). He was subsequently sentenced to a total effective sentence of death plus forty-five years incarceration. On appeal to this court, the defendant has raised a total of thirty-five claims, including twenty-one claims pertaining to the penalty phase. Prior to oral argument, this court directed the parties to address an additional issue: whether the defendant's penalty phase challenges had been rendered moot by this court's decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), which abolished the death penalty. We conclude that the defendant's claims challenging the penalty phase are not yet ripe. We address his remaining claims and affirm the judgment of conviction.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=848

AC38935 - State v. Tucker (Probation; assault in third degree; "The defendant, Raymond Tucker, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the court (1) erred in admitting a 911 recording into evidence, (2) erroneously found that the defendant had violated his probation, and (3) abused its discretion in imposing a sentence of three years incarceration. We disagree and, accordingly, affirm the judgment of the trial court.")

AC39376 - State v. Manousos (Arson in first degree; "The defendant, Anthony C. Manousos, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-111 (a) (1). The defendant claims that the trial court improperly (1) denied his motions to suppress various tangible items collected from him, as well as oral statements that he made to the police during an investigatory stop and subsequent patdown search for weapons; and (2) compelled him to disclose prior to trial the substance of the opinions of the expert witness he intended to call at trial. We disagree and, accordingly, affirm the judgment of the trial court.")

AC38855 - State v. Brown (Possession of more than four ounces of marijuana; subject matter jurisdiction; "The defendant, Aceion Brown, appeals from the judgment of the trial court denying his petition for a writ of error coram nobis. We conclude that, in the circumstances presented, the court lacked jurisdiction to consider the merits of the petition, and we do not reach the merits of his ineffective assistance of counsel claim. Because the court should have dismissed the petition, rather than having denied it, we reverse the judgment of the trial court only as to the form of the judgment and remand the case with direction to dismiss the petition for a writ of error coram nobis.")

AC38419 - State v. Outlaw (Assault of public safety personnel; plain error; "The defendant, Vaughn Outlaw, appeals from the judgment of conviction, rendered after a jury trial, of assault public safety personnel in connection with his assault of an employee of the Department of Correction (department) in violation of General Statutes § 53a-167c (a) (5). On appeal, the defendant asserts that the court committed plain error when it did not include detailed language on the use of unwarranted or excessive force as part of its instructions to the jury on the second element of § 53a-167c (a) (5), which pertains to whether the employee was acting in the performance of his duties. The state contends that the defendant explicitly waived his claim at trial and failed to demonstrate that the court committed an obvious error resulting in manifest injustice. Because we agree with the state's latter argument, we affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=835

AC39980 - State v. Lebrick (Felony murder; home invasion; conspiracy to commit home invasion; burglary in first degree; attempt to commit robbery in first degree; assault in first degree; "The defendant claims on appeal that the trial court improperly admitted into evidence (1) former testimony of a witness in violation of § 8-6 (1) of the Connecticut Code of Evidence and the confrontation clause of the sixth amendment to the United States constitution, and (2) testimony by the state's firearm and tool mark expert in violation of § 4-1 of the Connecticut Code of Evidence and the confrontation clause of the sixth amendment to the United States constitution. We disagree and, accordingly, affirm the judgment of the trial court.")

AC39720 - State v. Montana (Sexual assault in first degree; risk of injury to child; "The defendant, Travis Montana, appeals from the judgment of conviction rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the court abused its discretion in excluding third-party culpability evidence. We affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 http://www.jud.state.ct.us/lawlib/LawLibNews/Posts/Post.aspx?Id=824

AC34886 - State v. Bush (Sale of narcotics; sale of narcotics within 1500 feet of school; conspiracy to sell narcotics; "This case is before us on remand from our Supreme Court following its affirmance of our determination that insufficient evidence was presented at trial to sustain the conviction of the defendant, Richard Bush, for racketeering in violation of General Statutes § 53-393 et seq. The Supreme Court disagreed, however, with this court’s determination that the defendant was entitled to a new trial on the other charges of which he had been found guilty—six counts each of sale of narcotics and sale of narcotics within 1500 feet of a school, and one count of conspiracy to sell narcotics—because the trial court’s denial of his motion for a continuance to review voluminous discovery documents after granting his second request to represent himself had effectively deprived him of his constitutional right to self-representation. Before us now are the defendant’s additional claims of error as to his remaining convictions.The defendant claims that the trial court: (1) violated his constitutional right to self-representation by not granting his initial request to represent himself on the second day of voir dire; (2) improperly instructed the jury on the charge of conspiracy; and (3) improperly sentenced him to a term of twenty years incarceration on his conviction for conspiracy. We reject the defendant's first two claims of error, and thus conclude that he is not entitled to a new trial. We agree with the defendant, however, that he was improperly sentenced to a term of twenty years incarceration on his conviction for conspiracy. Accordingly, we remand this case for resentencing on that conviction.")

AC39893 - State v. Jin (Conspiracy to commit burglary in third degree; "The defendant, Gang Jin, appeals from the denial of his motion to open the judgment of conviction, after his guilty plea made pursuant to the Alford doctrine, of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-48. On appeal, the defendant claims that the court (1) improperly denied his application for the accelerated rehabilitation program pursuant to General Statutes § 54-56e and (2) erred in determining that he had received the effective assistance of counsel. The state counters that, following the imposition of the defendant's sentence, the court lacked jurisdiction to consider the defendant's motion to open. Additionally, the state argues that the defendant's claim that the court retained jurisdiction because he had been sentenced in an illegal manner, which was raised for the first time on appeal, fails because he challenges the "events prior to his conviction and guilty plea, rather than events at sentencing." The state further contends that the defendant's guilty plea, made pursuant to the Alford doctrine, waives all prior nonjurisdictional defects. We agree with the state that, following the imposition of the defendant's sentence, the court's jurisdiction terminated. Additionally, we decline to consider the defendant's claim of an illegal sentence because he failed to present this issue to the trial court via a motion to correct an illegal sentence. Finally, the form of the judgment is improper, and therefore we reverse the judgment and remand the case with direction to dismiss the defendant's motion to open.")



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