text:
    STATE OF CONNECTICUT v. ANDRE CAYO
    (AC 34776)
    Bear, Sheldon and Pellegrino, Js.

      Argued April 10
    officially released May 21, 2013

      Andre Cayo, pro se, the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Suzanne Vieux, supervisory assistant state’s attorney, for the appellee (state).

       May 21, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEAR, J.

The defendant, Andre Cayo, appeals from the judgment of the Superior Court entering a nolle prosequi (nolle) brought by the state’s attorney on the infraction of operating a motor vehicle with an obstructed windshield in violation of General Statutes § 14-99f (c) (infraction), denying him a trial de novo, and denying his motion to dismiss the infraction and the nolle. On appeal, the defendant claims that his rights pursuant to General Statutes § 54-56b and Practice Book § 39-30 were violated when the magistrate entered a nolle over his objection and that the trial court improperly refused his demand for a trial de novo and denied his motion to dismiss the nolle and the infraction. We agree with the defendant and reverse the judgment of the trial court.

On December 18, 2011, the defendant was issued a “complaint ticket” for the alleged infraction. By mail, the defendant pleaded not guilty to the infraction, and the matter was placed on the magistrate docket. On February 10, 2012, the defendant requested that the infraction be dismissed, but the request was denied. On April 30, 2012, at the state’s request, the magistrate entered a nolle on the alleged infraction. On May 1, 2012, the defendant filed a written demand for a trial de novo and a written motion objecting to the nolle. The Superior Court clerk’s office then notified the defendant that his demand for a trial de novo was improper because no trial previously had been conducted before the magistrate. On May 7, 2012, the defendant filed a motion objecting to the entry of the nolle and requesting, instead, that the alleged infraction be dismissed by the trial court. The court denied the defendant’s motion. This appeal followed.

I

The state has raised a question regarding this court’s subject matter jurisdiction, which we must address before moving on to the merits of the defendant’s claim on appeal. See State v. Richardson, 291 Conn. 426, 429-30, 969 A.2d 166 (2009) (if issue of subject matter jurisdiction raised, it must be resolved). First, the state argues that the decision to enter a nolle is within the sole discretion of the prosecutor and, therefore, is not a “decision of the magistrate,” as that phrase is used in General Statutes § 51-193u (d). Therefore, it argues, there was no jurisdiction for the trial court to entertain the motions of the defendant after the nolle was entered and there is no jurisdiction for us to consider this appeal. Alternatively, the state argues that if the nolle was a “decision of the magistrate,” the demand for a trial de novo rendered the magistrate’s decision “null and void” under § 51-193u, and the case remains pending before the trial court, with no final judgment having been rendered. We are not persuaded by the state’s arguments.

“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

Section 51-193u provides: “(a) Cases involving motor vehicle violations, excluding alleged violations of sections 14-215, 14-222, 14-222a, 14-224 and 14-227a and any other motor vehicle violation involving a possible term of imprisonment, or any violation, as defined in section 53a-27, which are scheduled for the entering of a plea may be handled by a magistrate.

“(b) Infractions and violations designated in subsection (a) of this section in which a plea of not guilty has been entered may be heard by a magistrate. Magistrates shall not have the authority to conduct jury trials.

“(c) Magistrates shall have the authority to accept pleas of guilty or of not guilty, to accept pleas of nolo contendere and enter findings of guilty thereon, to impose fines, to set bonds, to forfeit bonds, to continue cases to a date certain, to enter nolles brought by the prosecutorial official, to recommend suspension under section 14-1 lib, 14-140 or 15-154, to order notices of intention to suspend motor vehicle licenses and registrations, to order issuance of a mittimus if a defendant has been found able to pay and fails to pay, to remit fines, to impose or waive fees and costs, to hear and decide motions, to dismiss cases and to decide cases that are tried before him.

“(d) A decision of the magistrate, including any penalty imposed, shall become a judgment of the court if no demand for a trial de novo is filed. Such decision of the magistrate shall become null and void if a timely demand for a trial de novo is filed. A demand for a trial de novo shall be filed with the court clerk within five days of the date the decision was rendered by the magistrate and, if filed by the prosecutorial official, it shall include a certification that a copy thereof has been served on the defendant or his attorney, in accordance with the rules of court. No record of the proceedings shall be required to be kept.”

The state first argues that a decision to enter a nolle solely is within the discretion of the prosecutor and, therefore, is not a “decision of the magistrate,” as that phrase is used in § 51-193u (d). It argues, thus, that the nolle is not a decision from which a demand for a trial de novo can be made before the trial court, and both the trial court and this court have no jurisdiction to consider the matter. We are not persuaded.

Because we have “jurisdiction to determine whether the trial court had subject matter jurisdiction to hear the case”; Gemmell v. Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996); we will consider whether the entry of a nolle by the magistrate after it is brought by the state’s attorney is a decision of the magistrate within the context of § 51-193u (d). Pursuant to subsection (c) of § 51-193u, the magistrate has the authority, inter alia, to “enter nolles brought by the prosecutorial official . . . .” We conclude that implicit in having the authority to enter nolles is the authority to not enter or accept nolles. See generally State v. Lloyd, 185 Conn. 199, 201-202, 440 A.2d 867 (1981) (prosecutor no longer has unfettered discretion to enter nolle but now needs approval of court and consent of defendant). Otherwise, there would be no need for the court to be involved when the state wanted the infraction nolled; the prosecutor merely could handle the matter without the involvement of the court. Our conclusion further is supported by § 54-56b and General Statutes § 54-164n, which will be discussed more fully in part II of this opinion. Accordingly, under the plain language of the statute giving the magistrate the authority to enter nol-les, we reject the state’s first argument.

The state also argues, in the alternative, that if the nolle in this case was a “decision of the magistrate,” the demand for a trial de novo reinstated the infraction and rendered the magistrate’s decision “null and void.” It further argues that the denial of the defendant’s motion to dismiss by the trial court was an interlocutory decision and the case remains pending before the trial court, with no final judgment having been rendered. Under the specific facts of this case, we are not persuaded.

The magistrate entered a nolle over the objection of the defendant. As stated, this constituted a decision of the magistrate, from which, pursuant to § 51-193u (d), the defendant had the right to demand a trial de novo. Although the defendant made such a demand, the clerk’s office rejected it, informing the defendant that he had no such right. Accordingly, the motion was not accepted by the clerk’s office. The defendant then filed a “motion to dismiss,” explaining to the trial court that the magistrate improperly had entered a nolle over the defendant’s objection and requesting that the trial court dismiss the matter rather than permit the nolle to stand. The trial court denied the motion. This uncontested procedural history leads us to conclude that the state’s argument that the trial court’s ruling essentially reinstated the infraction and vacated the nolle has no merit. The court refused to accept the defendant’s demand for a trial de novo, and the court refused to dismiss the infraction and the nolle. Accordingly, there remains nothing pending in the trial court, and the nolle of the defendant’s infraction remains intact.

On the basis of the foregoing, we conclude that the trial court had jurisdiction in this case and that the defendant’s appeal properly is before us. See generally State v. Lloyd, supra, 185 Conn. 207-208 (appeal from entry of nolle permitted because cannot later be remedied by reversal of conviction after trial).

II

We next consider the defendant’s claim that his rights pursuant to § 54-56b and Practice Book § 39-30 were violated when the magistrate entered a nolle over his objection, and that the trial court improperly refused his demand for a trial de novo and denied his motion to dismiss the nolle and the infraction. He argues that he had the right to object to the entry of the nolle and that he was entitled to either a trial or a dismissal because the state made no representation regarding the unavailability of a material witness. The state argues that the defendant had no right to object to the entry of a nolle where he was charged only with an infraction. It contends that “the statutory restrictions [of § 54-56b] on nolles of charges ‘in a complaint or information’ do not apply” because “the infraction here is not a ‘crime,’ and thus commences via ticket or summons” rather than by complaint or information. We agree with the defendant.

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 13-14, 981 A.2d 427 (2009). Pursuant to § 1-2z, we look to the text of the statute to determine the meaning of the statute and we look to that statutes relationship to other statutes. If the meaning is clear and workable, we do not consider extratextual evidence. See id.

Section 54-56b provides: “A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.” (Emphasis added.)

The state asserts that § 54-56b does not apply in the present case because the defendant was charged with an infraction via a ticket or summons, and a ticket or summons is not a “complaint or information.” The state further argues that General Statutes § 54-46 requires that “all ‘crimes’ must be charged by ‘complaint or information,’ ”andthat§ 51-164n “provide[s] that infractions and specific violations be brought by summons, that a summons is not ‘arrest’ and that an infraction ‘shall not be an offense within the meaning of section 54a-24.’ ” The state admits, however, that “[c]ourt rules do require that infractions be prosecuted by ‘information or complaint’; [Practice Book] §§ 36-7, 36-11, 44-22; and that the nolle of an infraction in a defendant’s absence shall not waive the right to seek dismissal under section 39-30. [Practice Book] § 44-27 (d). . . . Nonetheless, [the state argues that] the court rules do not affect the substantive application of ... § 54-56b in excluding infractions from those nolles which require judicial approval.” We are not persuaded by the state’s argument and conclude that the defendant’s ticket or summons, in fact, is a complaint as it is clearly labeled, and that § 54-56b, therefore, applies.

We are guided in our conclusion by the plain language of General Statutes (Rev. to 2011) § 51-164n, together with § 54-56b. General Statutes (Rev. to 2011) § 51-164n provides in relevant part: “(a) There shall be a Centralized Infractions Bureau of the Superior Court to handle payments or pleas of not guilty with respect to the commission of infractions .... Except as provided in section 51-164o, any person who is alleged to have committed an infraction . . . may plead not guilty or pay the established fine and any additional fee or cost for the infraction or such violation. . . .

“(c) If any person who is alleged to have committed an infraction . . . elects to pay the fine and any additional fees or costs established for such infraction . . . he shall send payment, by mail or otherwise, to the Centralized Infractions Bureau, made payable to the ‘clerk of the Superior Court’. . . . The Judicial Department shall provide notice of the provisions of this subsection to law enforcement agencies and direct each law enforcement agency issuing a complaint to provide such notice to any person who is alleged to have committed a motor vehicle infraction ... at the time a complaint alleging such conduct is issued to such person.

“(d) If the person elects to plead not guilty, he shall send the plea of not guilty to the Centralized Infractions Bureau. The bureau shall send such plea and request for trial to the clerk of the geographical area where the trial is to be conducted. Such clerk shall advise such person of a date certain for a hearing.

“(e) A summons for the commission of an infraction . . . shall not be deemed to be an arrest and the commission of an infraction . . . shall not be deemed to be an offense within the meaning of section 53a-24. . . .

“(g) In any trial for the alleged commission of an infraction, the practice, procedure, rules of evidence and burden of proof applicable in criminal proceedings shall apply. Any person found guilty at the trial or upon a plea shall be guilty of the commission of an infraction and shall be fined not less than thirty-five dollars or more than ninety dollars or, if the infraction is for a violation of any provision of title 14, not less than fifty dollars or more than ninety dollars. ...” (Emphasis added.)

Subsection (c) clearly states that the law enforcement agency issuing a complaint for a motor vehicle infraction is to provide notice of the payment procedures to the person alleged to have committed such infraction at the time the complaint alleging such conduct is issued. General Statutes (Rev. to 2011) § 51-164n (c). Subsection (d) then directs that if the person receiving the complaint for a motor vehicle infraction elects to plead not guilty, the person must send the not guilty plea to the centralized infractions bureau, who must send this plea and request for trial to the clerk of the geographical area where the trial is to be conducted, and the clerk then must advise the person of the trial date. General Statutes (Rev. to 2011) § 51-164n (d).

We conclude that this language sets forth the procedures for processing motor vehicle infraction complaints that are issued by law enforcement agencies. This, taken together with the mandate of § 54-56b that a nolle “may not be entered as to any count in a complaint or information if the accused objects to the nolle . . . and demands either a trial or dismissal ...” leads us to the firm conclusion that the defendant’s infraction ticket was a complaint, and, therefore, he was entitled to object to the entry of a nolle and demand a trial or a dismissal. See General Statutes § 54-56b; General Statutes (Rev. to 2011) § 51-164n. Because there was no allegation by the state that any material witness has died, disappeared or become disabled, or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary, pursuant to § 54-56b, the magistrate was required to conduct a trial or dismiss the infraction.

Upon the specific facts of this case, we conclude that the defendant timely objected to the entry of a nolle by the magistrate and demanded a trial or a dismissal, which the magistrate improperly refused and, thereafter, entered the nolle. The defendant then requested a trial de novo, which the Superior Court clerk’s office informed him was improper because no trial had been conducted by the magistrate. We conclude that this decision also was incorrect because the defendant timely had demanded a trial de novo following the decision of the magistrate to enter a nolle. The defendant in this case properly followed the procedures available to him to protect his right to a dismissal or to a trial. The defendant is entitled either to his day in court or to a dismissal of the infraction.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The ticket presented to the defendant for his motor vehicle infraction specifically states at its top, in bold capitalized letters: “COMPLAINT TICKET.” It then provides: “The officer complains that...” and lists identifying information concerning the defendant, his vehicle and the infraction he was charged with having committed.

       It is not contested that the defendant objected to the nolle prosequi at the time it entered, although a transcript of the proceedings is not available. See General Statutes § 51-193u (d) (providing that no record of magistrate proceedings is required to be kept).

       Practice Book § 39-30 provides: “Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”
      We also note Practice Book § 44-27, which provides: “(a) Upon entry of a plea of not guilty to an infraction or to a violation which is payable by mail pursuant to statute, the clerk shall file such plea and forthwith transmit the file to the prosecuting authority for review.

        “(b) Unless a nolle prosequi or a dismissal is entered in the matter within ten days of the filing of a not guilty plea, the clerk shall schedule a hearing and shall send the defendant a written notice of the date, time and place of such hearing.
      “(c) Hearings shall be conducted in accordance with the criminal rules of evidence and with the provisions of chapter 42 insofar as the provisions of that chapter are applicable.
      “(d) A nolle prosequi or a dismissal may be entered in the absence of the defendant. In the event a nolle prosequi or a dismissal is entered in the matter, the clerk shall send a written notice of such disposition to any defendant who was not before the court at the time of such disposition. The entry of a nolle prosequi hereunder shall not operate as a waiver of the defendant’s right thereafter to seek a dismissal pursuant to Section 39-30."

       We also are aware that the legislature recently revised § 51-164n, effective October 1, 2012. See Public Acts 2012, No. 12-133, § 8. The revision added a new subsection (g) and redesignated the remaining subsections. Subsection (g) of § 51-164n now provides: “If a person elects to plead not guilty and send the plea of not guilty to the Centralized Infractions Bureau in accordance with subsection (d) of this section, such person may subsequently, at a proceeding at Superior Court, reach an agreement with the prosecutorial official as to the amount of the fine to be paid and elect to pay such fine without appearing before a judicial authority. The amount of the fine agreed upon shall not exceed the amount of the fine established for such infraction or violation. Any person who pays a fine pursuant to this subsection shall also pay any additional fees or costs established for such infraction or violation. Such person shall make such payment to the clerk of the Superior Court and such payment shall be considered a plea of nolo contendere and shall be inadmissible in any proceeding, civil or criminal, to establish the conduct of such person, provided the provisions of this section and section 51-164m shall not affect the application of any administrative sanctions by either the Commissioner of Energy and Environmental Protection authorized under title 26 or the Commissioner of Motor Vehicles authorized under title 14. A plea of nolo contendere pursuant to this subsection does not have to be submitted in writing. Nothing in this subsection shall affect the right ofaperson who is alleged, to have committed an infraction or any violation specified in subsection (b) of this section to plead not guilty and request a trial before a judicial authority." (Emphasis added.)


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    ANTHONY W. ROGERS v. COMMISSIONER OF CORRECTION
    (AC 34296)
    DiPentima, C. J., and Beach and Bear, Js.

      Argued January 22
    officially released June 11, 2013

      John R. Williams, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Tamara Grosso, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Anthony W. Rogers, appeals from the judgment of the habeas court denying his motion for summary judgment on the ground of the alleged ineffective assistance of his appellate counsel and granting in part the cross motion for summary judgment filed by the respondent, the commissioner of correction, on the ground of lack of prejudice. On appeal, the petitioner claims that the habeas court erred in holding that even if his appellate counsel adequately had briefed the issue of the alleged improper joinder of two of his pending cases on direct appeal of his criminal convictions this court would have affirmed his convictions. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of this appeal. In a pretrial motion, the state sought to join three informations against the petitioner in his criminal trial. State v. Rogers, 123 Conn. App. 848, 856, 3 A.3d 194, cert. denied, 299 Conn. 906, 10 A.3d 524 (2010). The first information charged the petitioner with murder, conspiracy to commit murder and attempt to commit murder; the second information charged the petitioner with attempt to commit assault in the first degree and carrying a pistol without a permit; and the third information charged the petitioner with possession of narcotics with intent to sell. The trial court granted the state’s motion for joinder with respect to the first and second informations. Id. After a jury trial, the petitioner was convicted of murder, conspiracy to commit murder, attempt to commit assault in the first degree and carrying a pistol without a permit. The trial court sentenced the petitioner to a total effective sentence of seventy-one years of incarceration. Id., 850 n.2. The petitioner appealed to this court, which declined to review the petitioner’s joinder challenge on the ground of inadequate briefing and affirmed the judgments of conviction. Id., 860, 862.

. On January 24, 2011, the petitioner filed a petition for a writ of habeas corpus in which he alleged the ineffective assistance of his appellate counsel on the ground that his counsel failed to brief adequately his claims regarding joinder, severance and uncharged misconduct. On May 24, 2011, the petitioner filed his first motion for summary judgment. The respondent objected to that motion and filed its own cross motion for summary judgment. The court denied both motions, without prejudice, in order for the parties to close the pleadings as required by Practice Book § 23-37. The parties then closed the pleadings and filed the same motions for summary judgment. On January 12, 2012, the court issued its memorandum of decision in which it denied the petitioner’s motion for summary judgment, granted the respondent’s cross motion for summary judgment only as to the petitioner’s claim regarding joinder, and dismissed the petitioner’s claim regarding severance. Thereafter, the court denied the petitioner’s petition for a writ of habeas corpus. On February 1, 2012, the court granted the petitioner’s petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the habeas court improperly denied his claim that his appellate counsel rendered ineffective assistance when appealing his criminal convictions. The petitioner argues that his appellate counsel’s ineffective assistance prejudiced him because this court, on direct appeal of his criminal convictions, would have reversed his convictions had his appellate counsel properly briefed the joinder issue. We disagree.

“Our standard of review is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of [a habeas] court’s decision [on a] . . . motion for summary judgment is plenary.” (Internal quotation marks omitted.) Bridgeport v. White Eagle’s Society of Brotherly Help, Inc., 140 Conn. App. 663, 667-68, 59 A.3d 859 (2013).

“Our Supreme Court has adopted [the] two part analysis [set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] in reviewing claims of ineffective assistance of appellate counsel. ... To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . First, deficient performance may be proved by showing that the counsel’s representation fell below an objective standard of reasonableness. . . . Second, prejudice to the defense requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.” (Citation omitted; internal quotation marks omitted.) Gray v. Commissioner of Correction, 138 Conn. App. 171, 177, 50 A.3d 406, cert. denied, 307 Conn. 929, 55 A.3d 570 (2012). “[T]he [prejudice] prong considers whether there is a reasonable probability that, but for appehate counsel’s failure . . . the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial.” (Internal quotation marks omitted.) Id., 177 n.3. “[T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.” (Internal quotation marks omitted.) Edward B. v. Commissioner of Correction, 140 Conn. App. 253, 255, 58 A.3d 370, cert. denied, 308 Conn. 911, 61 A.3d 1099 (2013). “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Gray v. Commissioner of Correction, supra, 177.

At the time of the petitioner’s criminal convictions, Connecticut courts “recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . [would] not second guess the considered judgment of the court as to the joinder or severance of two or more charges.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 338, 933 A.2d 1158 (2007). This presumption in favor of joinder subsequently was rejected by our Supreme Court in State v. Payne, 303 Conn. 538, 547, 34 A.3d 370 (2012) (“[w]e therefore will no longer adhere to the blanket presumption in favor of joinder”). The change in Connecticut law regarding the presumption in favor of joinder has no bearing on the present case because the trial court engaged in a thorough analysis in granting the state’s motion for joinder independent of the then existing presumption in favor of joinder. Furthermore, although our Supreme Court rejected the presumption in favor of joinder, the court did not alter the remainder of the substantive law that Connecticut courts apply when determining whether joinder is appropriate.

“[W]hen charges are set forth in separate informa-tions, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors.” State v. Payne, supra, 303 Conn. 549-50. “The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and the exercise of that discretion [may] not be disturbed unless it has been manifestly abused. ... It is the defendant’s burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. ... In [State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987)], our Supreme Court recognized three factors that must be considered by a trial court in determining whether joinder is appropriate. Those factors are (1) whether the charges involve discrete, easily distinguishable factual scenarios, (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part and (3) the duration and complexity of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Boscarino, 86 Conn. App. 447, 460, 861 A.2d 579 (2004). “If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Barnes, 127 Conn. App. 24, 40, 15 A.3d 170 (2011), aff'd, 308 Conn. 38, 60 A.3d 256 (2013).

In denying the petitioner’s petition for a writ of habeas corpus, the habeas court, after reviewing the trial court’s decision to grant the state’s motion to join two of the three informations and the standards that this court would have applied, found that it was “not reasonably probable that the petitioner would have prevailed in his direct appeal had the issue been properly briefed.” This court, on direct appeal of the petitioner’s criminal convictions, set forth the arguments advanced by the petitioner against joinder of the informations for trial. State v. Rogers, supra, 123 Conn. App. 858-59. In that decision, we noted the petitioner’s concession that the first Boscarino factor was satisfied, and that the trial court determined that he failed to address adequately the third Boscarino factor. Id., 858. We, therefore, need to consider only the second Boscarino factor in this habeas appeal.

The second Boscarino factor questions “whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part”; State v. Boscarino, supra, 86 Conn. App. 460; so as to “compromise the jury’s ability to consider fairly the charges against him in other unrelated, but jointly tried cases.” State v. Boscarino, supra, 204 Conn. 723.

The essence of the petitioner’s challenge to the join-der of the information charging murder, conspiracy to commit murder and attempt to commit murder with the information charging attempt to commit assault in the first degree and carrying a pistol without a permit is that the allegations that are the basis of the murder charge concern brutal or shocking conduct on the petitioner’s part that compromised the jury’s ability to consider fairly the charges against him in the attempt to commit assault and carrying a pistol without a permit case. The question of whether the murder allegations in the underlying criminal trial concerned brutal or shocking conduct on the petitioner’s part was addressed by the trial court, which “reasoned that the allegations surrounding [the] murder do not involve prolonged anguish, gratuitous injuries, prior taunting or any other claims that might inflame the jury’s passion. Instead, the murder, while tragic and upsetting, was committed in a relatively clinical fashion. Indeed [our Supreme Court] has held that [w]hile any murder involves violent and upsetting circumstances, it would be unrealistic to assume that any and all such deaths would inevitably be so brutal and shocking that a jury, with proper instructions to treat each killing separately, would necessarily be prejudiced by a joint trial. State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); see also State v. Hair, 68 Conn. App. 695, 700-701, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).” (Internal quotation marks omitted.) State v. Rogers, supra, 123 Conn. App. 858. Thus, the trial corut concluded that the murder “was not so brutal or shocking under Boscarino.'' (Internal quotation marks omitted.) Id., 859.

The trial court engaged in a thorough analysis of whether the murder concerned brutal or shocking conduct that could compromise the jury’s ability to consider fairly the charges against the petitioner of attempt to commit assault and carrying a pistol without a permit, rather than merely relying on the then existing presumption in favor of joinder as the basis for its conclusion that the petitioner did not satisfy the second Boscarino factor. The habeas court evaluated the trial court’s analysis and the abuse of discretion standard of review employed by this court on direct appeal. The habeas court determined that there was no genuine issue of material fact or question of law relating to whether the petitioner would have prevailed on direct appeal had the joinder issue been properly briefed by his appellate counsel and whether the petitioner suffered prejudice pursuant to Strickland. Thus, the habeas court denied the petitioner’s petition for a writ of habeas corpus.

The trial court concluded that the petitioner did not satisfy the second Boscarino factor because the murder allegations did not concern brutal or shocking conduct that could compromise the jury’s ability to consider fairly the charges against the petitioner in the attempt to commit assault case. The trial court provided a thorough analysis, premised on good authority, for its conclusion as to the second Boscarino factor. As we have previously set forth: “The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and the exercise of that discretion [may] not be disturbed unless it has been manifestly abused. ... It is the defendant’s burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” State v. Boscarino, supra, 86 Conn. App. 460.

Our review of the record before the habeas court and its application of our well established summary judgment standard provides us with no basis for reversing the court’s denial of the petitioner’s motion for summary judgment or its granting in part of the respondent’s cross motion for summary judgment. On the basis of the record before us, we conclude that there is no genuine issue of material fact or question of law relating to whether it is reasonably probable that the petitioner would have prevailed in his direct appeal even if the joinder issue had been briefed properly by his appellate counsel. Thus, the petitioner cannot demonstrate that he suffered prejudice under Strickland. Accordingly, we affirm the judgment of the habeas court denying the petitioner’s motion for summary judgment and granting the respondent’s motion for summary judgment on the issue of joinder.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court granted the petitioner’s petition for certification to appeal from the habeas court’s judgment on his petition for a writ of habeas corpus.

       We note that the petitioner’s present counsel also served as his trial counsel, his appellate counsel for the direct appeal of his criminal conviction and his habeas counsel. More importantly, the petitioner’s counsel is the same counsel that the petitioner alleged provided ineffective assistance in the direct appeal of his criminal convictions. The respondent filed with the habeas court a motion to disqualify the petitioner’s habeas counsel, which the court granted in part and denied in part. In its March 24, 2011 decision, the court stated that the petition for a writ of habeas corpus possibly could be resolved on summary judgment based “entirely on the existing trial court record without resort to new evidence.” The court, however, held that “[fjailure to submit a timely motion for summary judgment, or a decision by the court to deny the motion for summary judgment (or any cross motion for summary judgment) on the ground that testimony from the petitioner’s counsel is required shall result in disqualification of [the petitioner’s] present habeas counsel.”

       For the facts that reasonably could have been found by the jury in the underlying criminal cases, see State v. Rogers, supra, 123 Conn. App. 848.

       In his petition for a writ of habeas corpus, the petitioner made two additional claims; however, neither of those claims is before this court on appeal. First, the petitioner claimed that his appellate counsel provided ineffective assistance by failing to brief adequately the issue that the trial court erred in allowing evidence of uncharged conduct. The petitioner did not brief this claim in his motion for summary judgment to the habeas court and the court, therefore, deemed the claim abandoned. On May 4, 2012, the petitioner filed a withdrawal of any claim concerning uncharged misconduct. That claim, therefore, is not before this court on appeal.
      Secondly, the petitioner claimed that his appellate counsel rendered ineffective assistance by failing to brief adequately the issue that the trial court erred in denying the petitioner’s motion to sever certain charges. The habeas court dismissed that claim. In his appellate brief, the petitioner concedes that case law provides that “a greater showing must be made than was made [by the petitioner] at the criminal trial court level here regarding the nature of [the petitioner’s] proposed testimony and his reasons for not wanting to testify in the other matter. . . . Therefore, that issue is not pursued on this appeal.” (Citation omitted.)

       The petitioner’s concession and the trial court’s determination were made in connection with proceedings on his objection to the state’s pretrial motion for joinder in the underlying criminal case.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. YADEIL FIGUEROA
    (AC 33035)
    Beach, Alvord and Bishop, Js.

      Argued January 23
    officially released June 11, 2013

      Carlos E. Candal, assigned counsel, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The question presented in this appeal is whether the defendant, Yadeil Figueroa, was deprived of his constitutional right to conflict free representation when his attorney’s allegedly improper conduct became a significant issue in his trial. Because the defendant has demonstrated an actual conflict of interest that adversely affected his counsel’s performance; see Mickens v. Taylor, 535 U.S. 162, 174, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); we reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this case. At about 1 a.m. on June 20, 2009, five armed individuals—four men and a woman—broke into 57 East Clay Street, a three-family house in Waterbury. The group forcibly entered the third-floor apartment, where two residents, Mario Agi-lar and Fredi Barrera, were home. Agilar and Barrera escaped from the apartment by jumping out a window and onto the roof of the second-floor porch. They then broke a window to enter their second-floor neighbors’ apartment, from where they called 911. When the police arrived, Agilar and Barrera were on the roof, signaling to the third floor, where the perpetrators were ransacking their apartment.

The suspects scattered when the police arrived. While the officers fanned out in pursuit, the defendant, an unlicensed driver, approached 57 East Clay Street in an unregistered white Buick. Noticing the police cruisers on the scene, he pulled over and put his car in reverse. Fifteen year old Tommy F., a friend of the defendant’s, was in the front passenger seat. The police saw the female perpetrator, Tomasa LaPorte, fleeing the scene in the direction of the defendant’s vehicle. As LaPorte approached the car, the police heard the defendant and Tommy yelling: “Vamos! Vamos!” She was apprehended as she was trying to get into the Buick.

Officer Jose Diaz of the Waterbury police department grasped the driver’s side door to prevent the defendant’s car from fleeing the scene. After a brief struggle, the defendant stopped the car and he and Tommy were arrested.

The defendant was charged with conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 and 53a-100aa (a) (2); aiding and abetting home invasion in violation of General Statutes §§ 53a-8 and 53a-100aa (a) (2); and the lesser included offenses of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a), and aiding and abetting burglary in the first degree in violation of §§ 53a-8 and 53a-101 (a) (1) and (3).

During the defendant’s trial, the parties introduced evidence as to what had transpired at a July 9, 2010 meeting at the Manson Youth Correctional Institution in Cheshire (Manson meeting), where the defendant and Tommy were incarcerated. The meeting had been arranged by the defendant’s attorney, Tina D’Amato. Present at the meeting were the defendant, Tommy, D’Amato, an intern of D’Amato’s, and an interpreter. Tommy recounted his version of what had happened on the night of June- 20, 2009, and he provided a written statement to D’Amato. Tommy’s attorney was not present.

This meeting first came to light during the state’s cross-examination of the defendant. The defendant had testified on direct examination that he and Tommy had nothing to do with the home invasion. The prosecutor asked the defendant if, prior to the meeting, he had told Tommy that there were certain “things [that Tommy had] better say to [the defendant’s] lawyer so that [the defendant] could get off . . . .” The prosecutor also asked the defendant: “And Miss D’Amato told Tommy that all he had to do was sign something and that would be the end of it, right?” She further inquired of the defendant if he had sat “right across from [Tommy] in this meeting,” implying that the defendant had positioned himself close to Tommy in order to intimidate him. D’Amato objected to this line of questioning, asserting that the prosecutor “[had] no good faith basis” for intimating that D’Amato had played a role in facilitating a meeting that was designed improperly to secure favorable testimony from Tommy.

An on-the-record sidebar conference ensued. The court stated: “I’m going to be very cautious in allowing in evidence as to Miss D’Amato’s role in this. I see no need for it, whatsoever. There’s a risk when we start down that road that Miss D’Amato needs to become a witness, and I see no—and then we know what happens. So, I think it’s a road that should not be traveled on. So, Miss Serafim [the prosecutor], unless this issue comes up in a way that—unless this issue comes up inadvertently, I see no need to go down it.” The prosecutor responded that her position was that D’Amato had played a role “in the intimidation of [Tommy].” The court characterized this claim as “unnecessarily provocative . . . .” The corut further asserted that, unless the state had evidence that D’Amato had committed misconduct, there should be no further questioning about her role in allegedly inducing Tommy improperly to testify favorably for the defendant. The sidebar concluded with the court admonishing the state to “stay away from Miss D’Amato’s role in this conversation unless circumstances change, unless it’s raised by a witness inadvertently or some way that would go to the ultimate issue of what the defendant’s conduct in this matter was.” During the remainder of that day’s cross-examination, the meeting was not raised by the state.

The Manson meeting came up again, however, when Tommy later testified for the defense. On direct examination, Tommy asserted that although he had pleaded guilty to charges stemming from the home invasion, he had not participated in the crimes. He also stated that he did not know any of the individuals charged in the home invasion, except for the defendant. Tommy further testified that he and the defendant had just been out trying, unsuccessfully, to buy beer and were on their way back to the defendant’s home when they were arrested.

On cross-examination, Tommy stated that he and the defendant had spoken with each other prior to the interview with D’Amato, and that the defendant had told Tommy that he did not want to serve time in prison. Tommy testified that he had been reluctant to speak with D’Amato, but that he felt obligated to meet with her. Tommy asserted that he felt “intimidated” during the meeting, as the defendant was sitting across from him. As to the veracity of his description of his and the defendant’s activities on the night of the home invasion, Tommy denied that the defendant had instructed him what to tell D’Amato; but when the prosecutor asked Tommy if D’Amato had “told [Tommy] she was going to help [him] out and try and help [him] get less time,” Tommy said that this was true. Much of the remainder of the state’s cross-examination emphasized the apparent contradiction between Tommy’s guilty plea and his testimony that he had had no involvement in the home invasion and no relationships with the perpetrators.

The state on rebuttal called Orlando Rivera, a detective with the Waterbury police department. Rivera specifically testified regarding an interview with Tommy that had occurred on August 23, 2010, about one week before trial had commenced, at the Waterbury state’s attorney’s office. Present at the meeting were the prosecutor, Tommy, Tommy’s attorney, and an investigator. Rivera served as an interpreter for Tommy.

Rivera testified with respect to what Tommy had told them about whether intimidation or improper promises influenced his description of his and the defendant’s activities on the night of the home invasion. Rivera stated that Tommy told them that “parts of the statement [that Tommy gave D’Amato] were not accurate, they were not the truth.” Rivera asserted that Tommy told the group that he had been instructed by the defendant to “simply say they were driving by [57 East Clay Street],” if he was ever asked about their involvement in the case. Tommy said that he complied, Rivera stated, because he was “[absolutely” afraid of the defendant.

On cross-examination, in an apparent attempt to demonstrate that Tommy’s statements at the Manson meeting were accurate, regardless of what D’Amato may have promised him, D’Amato asked Rivera: “[TJhere’s some allegation that I made a promise to [Tommy] about opening his case .... [D]id you ask him when that happened, before or after he signed the statement?” Rivera responded: “I believe [Tommy] said that it was before he gave a statement.”

The state and the defendant made their final attempts to influence the jury’s perception of the Manson meeting during closing arguments. D’Amato argued: “Tommy told you that he felt intimidated when I came to him with my intern. . . . But he also testified that he told you [the jury] the truth.” The state suggested again that the whole point of the meeting was to coerce Tommy into providing a favorable, but untrue, statement about the defendant’s role in the home invasion. The state asked rhetorically: “[The defendant] claims he never spoke in the meeting with [Tommy], the meeting that he had with [D’Amato]. So, what was his purpose at that meeting if he didn’t say a word? Was it to scare and intimidate [Tommy] into saying that [the defendant] wasn’t involved?”

The jury found the defendant guilty of conspiracy to commit home invasion and aiding and abetting home invasion. He was sentenced to a total of fifteen years imprisonment, execution suspended after ten years, and five years of probation. He now appeals.

The defendant claims that his sixth amendment right to conflict-free representation was violated as a result of the insinuations surrounding the Manson meeting. Specifically, his claim is that D’Amato labored under an actual conflict of interest, which adversely affected her performance. The defendant contends that D’Amato’s alleged role in improperly securing favorable testimony placed her in an untenable position where her personal interests were in conflict with plausible alternative defense strategies and her participation in the Manson meeting diminished her credibility as an advocate at trial. The state counters that the defendant cannot show an adverse affect on his representation because D’Amato’s and the defendant’s interests never diverged; that is, both shared the objective of proving that Tommy’s depiction of events was truthful and not the product of coercion or promises. Moreover, the state argues that the defendant failed to articulate an alternative defense strategy that was not pursued because of the alleged conflict. We agree with the defendant.

This appeal presents a question of law over which we exercise plenary review. See State v. Parrott, 262 Conn. 276, 286, 811 A.2d 705 (2003). The sixth amendment’s guarantee to criminal defendants of effective assistance of counsel encompasses “the right to be represented by an attorney who is free from conflicts of interest.” United States v. Blount, 291 F.3d 201, 210 (2d Cir. 2002), cert. denied sub nom. Streater v. United States, 537 U.S. 1141, 123 S. Ct. 938, 154 L. Ed. 2d 838 (2003).

When a trial court becomes aware of the possibility of a conflict of interest, the court is obligated to inquire meaningfully into the conflict. See State v. Lopez, 80 Conn. App. 386, 391, 835 A.2d 126 (2003), aff'd, 271 Conn. 724, 859 A.2d 898 (2004). This obligation arises not only when there has been a timely conflict objection at trial, but also when “the trial court knows or reasonably should know that a particular conflict exists.” Id.; cf. Mickens v. Taylor, supra, 535 U.S. 169 (trial court’s duty to inquire not triggered when there is only “a vague, unspecified possibility of conflict”). The court’s “ ‘inquiry must be thorough and searching’ ''; State v. Lopez, supra, 391; that is, “[t]he court must investigate the facts and details of the attorney’s interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all.” United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994).

The duty to inquire does not serve its own end but rather is premised, of course, on the need to avoid representation tainted by conflict. Conflicts of interest most typically arise when an attorney represents multiple codefendants and the attorney’s advocacy on behalf of one defendant is inconsistent with the interests of another or the attorney forbears pursuing a line of defense because it would compromise the defense of another. See State v. Cruz, 41 Conn. App. 809, 812, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996). Multiple representation is not, however, the only scenario implicating conflict of interest concerns. See State v. Parrott, supra, 262 Conn. 288. The possibility that a defendant’s attorney could be a material witness in the case raises the possibility of divergent interests. See State v. Lopez, supra, 80 Conn. App. 393; United States v. Levy, supra, 25 F.3d 156 (“[defense attorney] had a personal interest to avoid even the possibility of being called as a witness, especially since he very likely would have had to cease representing [his client] if required to testify”). Additionally, courts have recognized an actual conflict of interest when a defendant’s lawyer has engaged in conduct during the course of the representation that could result in criminal charges or significant disciplinary sanctions. See United States v. Levy, supra, 156 (cataloguing federal cases where allegations of defense counsel’s impropriety result in actual conflict of interest). Moreover, even where disciplinary action may not be likely, an attorney’s participation in dubious activity may diminish his or her effectiveness as an advocate. See State v. Lopez, supra, 394-95.

The mechanics appropriate to address issues of conflict of interest on appeal vary according to the record presented. Very often, where the facts regarding the conflict are not developed on the record, the remedy necessarily lies in habeas corpus. In Lopez, this court suggested that decisions of the trial court, rather than the actions of counsel, were appropriately reviewed on appeal. Id., 390. The court in Lopez also suggested, however, that direct claims of ineffective assistance could be pursued on appeal where the record is adequate for their presentation. Id. Our Supreme Court in State v. Parrott, supra, 262 Conn. 285-86, held as well that direct review is appropriate where the record is adequate for review or where a question of law is presented.

In this case, the record is adequate for review of the claim that D’Amato’s effectiveness was compromised by her participation in the meeting with Tommy and the suggestion, presented to the fact finder, that she may have attempted to offer consideration in return for favorable testimony. In such a circumstance, focus on the court’s inquiry and the action of the court is beside the point. The court clearly was aware of the problem, did what little it could to minimize the impact, and otherwise allowed into evidence admissible testimony. No one requested a mistrial. In the circumstances of this case, the focus appropriately is on the effectiveness of counsel rather than the rulings of the court. The purpose of the court’s inquiry, after all, is to determine whether there is an actual or potential conflict, and, if there is an actual conflict, to inquire whether the defendant chooses to waive the conflict or whether the attorney must withdraw. We are left in this case with a record of an actual conflict, no waiver and no withdrawal. “The constitutional question must turn on whether trial counsel had a conflict of interest that hampered the representation, not on whether the trial judge should have been more assiduous in taking prophylactic measures.” Mickens v. Taylor, supra, 535 U.S. 179 (Kennedy, J., concurring).

In Mickens, the United States Supreme Court held that if a case is to be reversed, the defendant must show that the conflict “adversely affected his counsel’s performance.” Id., 174. “[A] potential conflict of interest, no matter how it is addressed by the trial judge, is now insufficient [after Mickens] to warrant relief.” (Emphasis in original.) United States v. Fuller, 312 F.3d 287, 291-92 (7th Cir. 2002). “This showing by a defendant of an actual conflict of interest is less burdensome than that required to establish ineffective assistance of counsel claims. . . . [T]he defendant must demonstrate that his counsel’s performance was affected by the conflict, but need not also establish that the difference in performance prejudiced him in the same sense as in an ineffective assistance claim. . . . Showing an adverse effect, however, still requires more than mere speculation . . . the defendant must show that [the attorney] might plausibly have pursued an alternative defense strategy, and that the alternative strategy was in conflict with, or may not have been pursued because of, [the attorney’s] other loyalties or interests . . . .” (Citations omitted; internal quotation marks omitted.) United States v. DeCologero, 530 F.3d 36, 76-77 (1st Cir.), cert. denied, 555 U.S. 1005, 129 S. Ct. 513, 172 L. Ed. 2d 376 (2008); see also Eisemann v. Herbert, 401 F.3d 102, 107 (2d Cir. 2005) (“[prejudice is presumed . . . if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance” [internal quotation marks omitted]). The United States Court of Appeals for the Second Circuit has explained that “a defendant need suggest only a ‘plausible’ alternative strategy that was not pursued at trial [because of a conflict of interest], not necessarily a ‘reasonable’ one.” Eisemann v. Herbert, supra, 107. This is because “atrae conflict of interest forecloses the use of certain strategies and thus the effect is difficult if not impossible to measure.” United States v. Ellison, 798 F.2d 1102, 1107 (7th Cir. 1986), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987).

What allegedly transpired at the Manson meeting created two areas of conflict. The first conflict lay in the tension between D’Amato’s continuing representation and the need for her to testify. It was clear that one aspect of the state’s theory of the case was that the meeting with Tommy was orchestrated to secure his favorable testimony by improper means. Consistent with this theory, the state adduced testimony that Tommy was intimidated by the defendant; that the defendant had spoken with Tommy in advance of the Manson meeting regarding what Tommy should tell D’Amato; that, at the meeting, the defendant sat directly across from Tommy, so he would not deviate from the prearranged script; and that D’Amato had promised Tommy some form of assistance with his own case. If the state’s allegations are true, D’Amato experienced a serious lapse in professional judgment and, to one degree or another, facilitated witness intimidation.

Had she not represented the defendant at trial, D’Amato could have testified, but doing so may have been undesirable, from her perspective. See United States v. Levy, supra, 25 F.3d 156. Additionally, remaining in the case presented a situation where her self-interest may have militated against delving too deeply into the issue during Tommy’s testimony. Cf. State v. Lopez, supra, 80 Conn. App. 395 (“[i]t is impossible to determine what role defense counsel's involvement in securing the victim’s recantation played in the making of strategic choice during trial”); see also United States v. Levy, supra, 156.

The second conflict bearing on the sixth amendment right to effective counsel lay in her facilitation of the Manson meeting itself and in the way the meeting transpired, as her participation in the meeting could have led the jury to view defense counsel as the defendant’s accomplice in securing Tommy’s statement. See State v. Lopez, supra, 80 Conn. App. 395. This danger may have been exacerbated inadvertently when, during D’Amato’s cross-examination of Detective Rivera, she asked not whether she had in fact promised Tommy assistance with his case, but whether that promise had come before or after Tommy had provided a favorable rendition of the events at issue. Although D’Amato may have been attempting to show that the substance of Tommy’s statement was truthful, she reinforced the state’s depiction of the meeting as unsavory.

The state argues that the defendant cannot show that D’Amato’s conflict of interest had an adverse effect on the representation because there were other witnesses, namely, D’Amato’s intern and the inteipreter, who could have testified as to what occurred at the Manson meeting. Neither of these individuals, however, would have been a substitute for D’Amato, who was the only person who could have explained any statements that she made to Tommy about assisting him with his case, and why she believed it was necessary—and appropriate—for the defendant to attend the meeting. We need not find that D’Amato’s testimony would have proved a successful trial strategy; “[w]ith respect to the substance of the plausible alternative strategy, the defendant . . . only [must show] that it possessed sufficient substance to be a viable alternative.” (Internal quotation marks omitted.) Eisemann v. Herbert, supra, 401 F.3d 107. The defendant has made the requisite showing of an actual conflict affecting performance.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In addition to his sixth amendment claim, the defendant raises three other issues on appeal: that the trial court failed to appoint a guardian for the minor defendant to be present throughout the proceedings, as required by General Statutes § 54-199; that the court improperly permitted one of the state’s witnesses to serve as an interpreter; and that the state engaged in prosecutorial impropriety. Because of our disposition of this appeal on sixth amendment grounds, we do not reach these claims.

       Because the witness was a minor, we refer to him as Tommy.

       The defendant’s and Tommy’s first language is Spanish, and both required interpreters for their testimony.

       Three of the four other individuals involved in the home invasion testified for the defense. They stated that they did not know either the defendant or Tommy and that they were not involved in the crime.

       Indeed, the court in Lopez considered how the conflict of interest might have affected the defense attorney’s trial strategy. See State v. Lopez, supra, 80 Conn. App. 394-96; id., 395 (“Pit is impossible to determine what role defense counsel’s involvement in securing the victim’s recantation played in the making of strategic choices during trial”). The court discussed whether the conflict “may have weighed particularly with respect to [defense counsel’s] decision not to testily” and whether it impacted his cross-examination of the victim. Id., 395-96. Considering the effect of the conflict on the representation was inevitable.

       The appropriate standards to be applied in considering claims of actual conflict of interest are different from those applied in more generic claims of ineffective assistance of counsel. Compare, e.g., Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) with Mickens v. Taylor, supra, 535 U.S. 162.