author: SHELDON, J.

text:
    BRANDEN HOLLOWAY v. COMMISSIONER OF CORRECTION
    (AC 34511)
    DiPentima, C. J., and Sheldon and Lavery, Js.

      Argued May 22
    officially released September 3, 2013

      Dylan P. Kletter, assigned counsel, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Brenda L. Hans, assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

The petitioner, Branden Holloway, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he challenged his conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, and (2) erred in denying his petition for a writ of habeas corpus, which was based on claims (a) that his trial counsel was ineffective in failing to object or except to the trial court’s alleged failure to instruct the jury that it could not find him guilty under § 21a-278a (b) without the state’s having proved beyond a reasonable doubt, as an essential element of that offense, that he possessed narcotics with the intent to sell them at a specific location, which location happened to be within 1500 feet of a public housing project; and (b) that his appellate counsel was ineffective in failing to raise claims of error on direct appeal from the conviction under § 21a-278a (b) based upon the trial court’s alleged failure to instruct the jury on the intended-location-of-sale element of the charged offense, and the alleged insufficiency of the evidence to prove that essential element beyond a reasonable doubt.

Concluding, as we do, that the petitioner’s claim of ineffective assistance of trial counsel is well supported by the record before us, we agree with the petitioner that the trial court abused its discretion in denying his petition for certification to appeal on that issue and conclude, upon reviewing his claims on the merits, that the judgment of the habeas court must be reversed, the petitioner’s challenged conviction under § 21a-278a (b) must be vacated and, accordingly, the petitioner must be afforded a new trial on the charge of possession of narcotics with intent to sell within 1500 feet of a public housing project.

In addressing the petitioner’s claims on direct appeal, this court set forth the following facts. “On the morning of November 28, 2005, Sergeant William Lowe, Detective Mark Lepore and Officer Terrance Blake of the Norwalk police department were assigned to locate and to arrest the [petitioner] pursuant to a warrant for a violation of probation. The three police officers, traveling together in an unmarked police cruiser and dressed in plain clothes, headed to the area surrounding the Colonial Village public housing project—the area they were assigned to search. They were aware that the [petitioner] likely was driving a black Hyundai for which they had the license plate number. The officers drove to a parking area behind a strip mall located at 280 Connecticut Avenue, across the street from Colonial Village. As the officers approached this area, Blake, who was driving, saw a black Hyundai parked perpendicular to a wall. The license plate number matched the one that the officers were given, and Blake parked so that the Hyundai was blocked by the cruiser. Parked next to the Hyundai was a white Nissan Sentra, in which Frank Bruno was seated. The [petitioner] was walking from his vehicle to the Nissan as the officers approached; he was between the two vehicles as the officers exited the cruiser.

“Upon exiting the cruiser, the officers identified themselves, drew their revolvers, ordered the [petitioner] to stop and put his hands up and informed him that he was under arrest. The [petitioner] did not comply and moved toward the wall adjacent to where his car was parked. Lepore walked to one side of the Hyundai while Blake walked between the Nissan and the Hyundai in an effort to cut off any means of escape for the [petitioner]. Lowe, who noticed that Bruno was attempting to swallow something that Lowe believed to be packaged cocaine, approached the Nissan and, through the driver’s side window, attempted to stop Bruno from swallowing the contraband by grasping him by the jaw. As Lowe confronted Bruno, Lepore and Blake attempted to place the [petitioner] under arrest and to handcuff him. The [petitioner] became verbally abusive and resisted their efforts to handcuff him by kicking and elbowing the officers, tensing his arms, thrashing his body and limbs about and wrestling with the officers. During this struggle, Lepore, in an effort to gain control of the [petitioner], punched him multiple times on the back and upper arms. This had no discernible effect because the [petitioner] continued to resist the officers.

“At one point during the struggle with the [petitioner], Blake released his grip on him and retrieved a Taser gun from Lepore’s utility belt. Blake warned the [petitioner] twice that if he did not stop resisting, he would be immobilized with the Taser gun. When the [petitioner] did not comply, Blake shot him with the Taser gun in the back after which the [petitioner] fell to the ground and was handcuffed. Soon after the [petitioner] was subdued, Blake searched him and retrieved from his left front pants pocket a plastic bag containing twelve bags of a white powdery substance. Subsequent chemical testing conducted by Lepore and then by Rafal Miel-guj, a department of public safety chemist, confirmed that the substance was cocaine. Mielguj determined that the cocaine seized from the [petitioner] weighed approximately seventeen grams and was divided into the twelve bags in amounts varying from about one third of a gram to more than five grams.

“During the struggle with the [petitioner], Lepore radioed for backup assistance. Greg Scully, a Norwalk police officer, responded to Lepore’s call. Upon arriving at the scene, Scully saw a man later identified as Sean Sullivan . . . who was carrying a small gray plastic bag, run from the area. Previously, Sullivan had been seated in the Hyundai during the officers’ interactions with the [petitioner] and Bruno. As the [petitioner] was being handcuffed, Sullivan exited the Hyundai and ran away. Scully pursued Sullivan in his vehicle. At no time prior did Lowe, Lepore or Blake observe Sullivan in the Hyundai. Soon after he started pursuing Sullivan, Scully exited his vehicle and continued to pursue him on foot. Scully then tackled and subdued Sullivan. Scully found a loaded nine millimeter [TEC-9] handgun along with an instruction manual for the weapon inside the gray plastic bag.

“The jury subsequently found the [petitioner] guilty of criminal possession of a pistol or revolver [in violation of General Statutes § 53a-217c (a) (1)], possession of a weapon in a motor vehicle [in violation of General Statutes § 29-38], possession of narcotics with intent to sell by a person who is not drug-dependent [in violation of General Statutes § 21a-278 (b)] and possession of narcotics with intent to sell within 1500 feet of a public housing project [in violation of § 21a-278a (b)]. The court imposed a total effective sentence of fifteen years incarceration.” (Footnotes omitted.) States v. Holloway, 117 Conn. App. 798, 801-803, 982 A.2d 231 (2009), cert. denied, 297 Conn. 925, 998 A.2d 1194 (2010).

In its decision on the petitioner’s direct appeal, this court: (1) reversed the petitioner’s conviction of possession of narcotics with intent to sell by a person who is not drug-dependent, and thus ordered a new trial on that charge; (2) affirmed the petitioner’s conviction of criminal possession of a pistol or revolver but reversed the sentence imposed for that offense, and thus ordered that the petitioner be resentenced on that charge; and (3) affirmed the petitioner’s conviction of possession of a weapon in a motor vehicle and possession of narcotics with intent to sell within 1500 feet of a public housing project. Id., 820B.

On June 13, 2008, the petitioner commenced this action by filing his initial petition for a writ of habeas corpus. In his later amended petition filed July 22,2011, on which this action was ultimately brought to trial, the petitioner claimed, to reiterate: (1) that his trial counsel, Attorney David Marantz, was ineffective in failing to object or except to the trial court’s alleged failure to instruct the jury that it could not find him guilty under § 21a-278a (b) unless the state proved beyond a reasonable doubt that he not only possessed narcotics within 1500 feet of a public housing project with the intent to sell them, but also that he intended to sell such narcotics at a specific location, which location happened to be within 1500 feet of a public housing project; and (2) that his appellate counsel, Attorney Mark Rademacher, was ineffective in failing to raise claims of error on his direct appeal based upon both the trial court’s alleged failure to instruct the jury on the intended-location-of-sale element of the charged offense and the alleged insufficiency of the evidence to prove that essential element beyond a reasonable doubt.

During a three day trial on the petitioner’s amended petition, the habeas court reviewed transcripts of the petitioner’s underlying criminal trial and considered written briefs and oral arguments from the parties as to the merits of those claims. In their arguments, the parties did not dispute that the trial court in the petitioner’s trial was required to instruct the jury, inter alia, that one essential element of the offense of possession of narcotics with intent to sell within 1500 feet of a public housing project under § 21a-278a (b) was that the petitioner possessed narcotics with the intent to sell them at a specific location, which location happened to be within 1500 feet of a public housing project. As such, their arguments were consistent with our Supreme Court’s controlling decision in State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995), which expressly held, on the functionally identical charge of possession of narcotics with intent to sell within 1000 feet of a school under the pre-October, 1992 version of § 21a-278a (b), that to convict a defendant under that statute, the state was required to prove both that he possessed narcotics within the statutorily prohibited area with the intent to sell them, and that he did so with the intent “to sell or dispense [them] ... at a specific location, which location happen[ed] to be within [the prohibited area].”

Our courts consistently have followed the rule of Denby in interpreting and enforcing the provisions of § 21a-278a (b), both in the ten year period preceding the petitioner’s arrest; see, e.g., State v. Player, 58 Conn. App. 592, 597-98, 753 A.2d 947 (2000) (“§ 21a-278a [b] requires the state to prove beyond a reasonable doubt that the defendant intended to sell narcotics at a location that is within the 1500 feet zone”); State v. Padua, 73 Conn. App. 386, 808 A.2d 361 (2002) (hewing to analytic framework of Denby), rev’d in part on other grounds, 273 Conn. 138, 869 A.2d 192 (2005); and thereafter. See State v. Lewis, 303 Conn. 760, 770-71, 36 A.3d 670 (2012) (“[M]ere possession of narcotics with an intent to sell at some unspecified point in the future, at some unspecified place, is not enough [to prove a violation of § 21a-278a (b)]. . . . [Instead, the state must produce] evidence that the defendant engaged in conduct reflecting an intent to sell drugs at some location within the proscribed area . . . .” [Citations omitted; internal quotation marks omitted.]); State v. Stovall, 142 Conn. App. 562, 574, 64 A.3d 819 (2013) (“This court has held that the plain language of § 21a-278a [b] requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1500 feet of a public housing project, among other geographical designations. . . . There is no requirement that the state prove that the defendant had actual knowledge that the location where he intended to sell drugs was within the proscribed area . . . rather, the state must demonstrate only that the defendant intended to sell or dispense those drugs in his or her possession at a specific location, which location happens to be within 1500 feet of a public housing project, among other geographical designations.” [Internal quotation marks omitted.]).

The parties also did not dispute before the habeas court that, if the trial court failed to instruct the jury on the intended-location-of-sale element of § 21a-278a (b), it committed a fundamental constitutional error that a reasonably competent criminal defense lawyer should have detected and sought to cure by objecting or excepting to the court’s charge. Instead, the primary focus of the parties’ dispute before the habeas court was whether the challenged instructions actually included a proper, sufficient charge on the intended-location-of-sale element of the charged offense. The petitioner claimed that the court’s instructions violated the rule of Denby by misleading the jury to believe that it could find him guilty under § 21a-278a (b) as long as the state proved that he possessed narcotics within 1500 feet of a public housing project with the intent to sell them, regardless of where, in particular, he ultimately intended to sell them. The respondent, the commissioner of correction, disagreed, contending that all the essential elements of the charged offense, including the intended-location-of-sale element, were described adequately in the court’s instructions.

On February 3, 2012, at the conclusion of its posttrial deliberations, the habeas court issued a memorandum of decision denying the amended petition. In its decision, the court explained its ruling as follows: “It is the petitioner’s claim that [the challenged] instruction allowed the jury to convict the petitioner for merely possessing drugs within the prohibited 1500 feet without also finding beyond a reasonable doubt the essential element that he also had the requisite intent to sell while within that prohibited area and that a reasonably competent criminal defense counsel should have objected to this instruction. This court finds that the instructions given by the criminal trial court in this matter sufficiently informed the jury of all essential elements of the crimes charged and, therefore, [the] petitioner has failed to establish that his trial counsel’s performance was in any way deficient for failing to contest the instructions given regarding [this charge]. . . . Having found that the instructions given to the jury in the present case, as a whole, on the charge of [possession with [i]ntent to [s]ell within 1500 feet of a [hjousing [p]roject were legally sufficient, [the] petitioner’s trial counsel cannot be said to have performed in a constitutionally deficient manner for failing to have raised a challenge to them. . . . Since . . . the instructions given by the trial court, as a whole, properly instructed the jury as to all elements of the crime charged, there can be no deficiency found in appellate counsel’s performance for failing to raise a challenge on appeal.” (Emphasis in original; footnotes omitted.) After the issuance of this decision, the petitioner filed a timely petition for certification to appeal, which the habeas court denied on February 23, 2012. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On this appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and that the court erroneously rejected his claims that he received ineffective assistance of trial counsel. We agree with the petitioner.

As an initial matter, we set forth the standard of review relevant to our resolution of this appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Internal quotation marks omitted.) Rosado v. Commissioner of Correction, 129 Conn. App. 368, 371-72, 20 A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011).

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429-30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

“To satisfy the performance prong [of the Strickland test] the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 295, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 135 Conn. App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).

“With respect to the prejudice component of the Strickland, test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn. App. 430.

Accordingly, in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner’s underlying claim that his trial counsel provided ineffective assistance. With the foregoing principles in mind, we now address the merits of the petitioner’s claim.

Specifically, the petitioner contends that his trial counsel’s failure to object or except to the trial court’s charge on § 21a-278a (b), which allegedly failed to instruct the jury that it could not find the petitioner guilty under the statute unless the state proved beyond a reasonable doubt that the petitioner possessed narcotics with the intent to sell them at a specific location, which location was within 1500 feet of a public housing project, constituted ineffective assistance of counsel. We agree.

“It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). Consequently, the trial court’s failure to instruct a jury on an essential element of a charged offense is a fundamental constitutional error “because it deprives the defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotation marks omitted.) Id., 414.

One of the most important responsibilities of defense counsel in a criminal trial is to protect his client against conviction of any charged offense without proof beyond a reasonable doubt of each essential element of that offense. To ensure that the defendant receives such basic protection from an unconstitutional conviction, counsel is afforded not only the opportunity to submit requests to charge the jury on the essential elements of each charged offense, but to object to any of the state’s requests to charge that misdescribe those elements or misstate the state’s burden of proof with respect to them. Furthermore, even if counsel submits no requests to charge, he is afforded a final, fully effective opportunity to protect his client’s right not to be convicted of any charged offense without proof beyond a reasonable doubt of each essential element of that offense by noting his exceptions to the trial court’s charge, immediately after the charge is delivered to the jury. Regardless of counsel's particular trial strategy on behalf of his client, he simply has no excuse not to insist that the jury be properly instructed on each essential element of every charged offense by using one or more of the previously described procedural vehicles. Because there is no conceivable tactical justification for defense counsel not to preserve his client’s right not to be convicted without proof beyond a reasonable doubt of each essential element of each charged offense by insisting that proper jury instructions be given on those elements, counsel's failure to take timely steps to ensure that such instructions are given on each charge to protect his client from an unwarranted conviction on that charge constitutes deficient performance with respect to that charge, under the first, performance prong of Strickland v. Washington, supra, 466 U.S. 687, because it is “not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, supra, 130 Conn. App. 295.

Proof of such deficient performance in failing to object or except to the omission of any such essential element from the court’s charge, moreover, will almost invariably satisfy the second, prejudice prong of Strickland v. Washington, supra, 466 U.S. 687, because in the absence of any alternative way for the jury to learn the requirements of the law, the giving of such an incomplete instruction will invariably lead the jury to deliberate on the charged offense without determining if the state has proved the omitted element beyond a reasonable doubt. The only exceptional situation in which a different finding as to prejudice may be justified, on the theory of harmless error, is when the reviewing court, in examining the entire record, is “satisfied beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” (Emphasis in original; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 170, 869 A.2d 192 (2005), quoting State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000).

Turning to the details of the parties’ dispute as to the sufficiency of the trial court’s instructions on the intended-location-of-sale element of the offense of possession of narcotics with intent to sell within 1500 feet of a public housing project under § 21a-278a (b), we note initially that the trial court gave substantive instructions to the jury on two separate occasions, both before the start of evidence and at the close of all the evidence, following the parties’ closing arguments. Before the start of evidence, the court instructed the jury as follows on the elements of possession of narcotics wdth intentto sell within 1500 feet of apublic housing project under § 21a-278a (b), as charged in the fourth count of the information: “[T]he final charge is, any person who possesses narcotics with intent to sell— possesses narcotics as charged with intent to sell those narcotics, as we just indicated, and that possession is within 1500 feet of a public housing unit, would be guilty of that crime. We put emphasis on the place where the possession occurred, and that is one of the items, apublic housing unit. So, the state must prove, again, that the [petitioner] was in possession, he was the person in possession, he had possession of narcotics, he had possession with intent to sell, and that he had this possession with intent to sell within 1500 feet of the perimeter of apublic housing unit." (Emphasis added.)

Later, in its final charge to the petitioner’s jury at the conclusion of the parties’ closing arguments, the court once again described the essential elements of § 21a-278a (b), stating: “And the final issue here, on the fourth count, is whether possession with intent to sell cocaine was within 1500feet of the real property comprising a public housing project. Our legislature has seen fit to create a separate charge with regard to possession of narcotics with intent to sell depending on the location where it was possessed. And it is near a school, private or public school, near a nursery school, within the area of a public housing development, within 1500 feet of the perimeter of that public housing project, as being a more serious matter than just possession with intent to sell down on the street someplace not near any of these places. Because these are critical areas in our society where young children or other adults may apply. So, they created this statute. And it may arise out of the same set of circumstances.

“So, here again the state has to prove the same elements as in the third count. That he possessed narcotics, that he knew he was in possession of narcotics, that the narcotics was cocaine, that it was in fact cocaine, and that he possessed it with intent to sell, exchange or transfer it to someone else, and that he did possess it within 1500feet of a public housing unit. Now, the parties have stipulated here, and you may accept as a fact proven that [the petitioner] was arrested within 1500 feet of the Colonial Village, which is a public housing project. So, they save the necessity of bringing in experts to testify to that. So, those are the charges, so that’s the elements that have to be proven beyond a reasonable doubt.” (Emphasis added.)

“When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).

An examination of the entire jury charge in the present case reveals that it failed to instruct the jury on each essential element of the crime set forth in § 21a-278a (b). This statute, as previously noted, has been held to proscribe not merely possession of narcotics within 1500 feet of a public housing project with the intent to sell them somewhere, but possession of narcotics within that prohibited area with the intent to sell them within that very area. In this case, by contrast, the sole focus of the trial judge’s initial charge to the jury with respect to the location where the prohibited activity must have occurred to constitute a violation of the statute was on the element of possession. The court thus expressly informed the jury that to violate the statute, a person who possesses narcotics with the intent to sell them must be shown to have possessed them within 1500 feet of a public housing project, without also informing the jury where, in particular, he must be shown to have intended to sell them. On that score, the trial judge expressly, but incorrectly, told the jury that “[w]e put emphasis on the place where the possession occurred,” without explaining that the alleged perpetrator must also be shown to have intended that the sale itself would occur within that same proscribed area.

In similar fashion, the trial court’s final instructions on the charge of possession of narcotics with intent to sell within 1500 feet of a public housing project drew the jury’s attention exclusively to the act of possessing narcotics as the prohibited conduct that must have occurred within 1500 feet of a public housing project in order to constitute a violation of the statute. Specifically, the judge informed the jury that “[o]ur legislature has seen fit to create a separate charge with regard to possession with intent to sell depending on the location where it was possessed.” When specifying the elements of this charge to the jury, the judge stated that “the state has to prove the same elements as in the third count. That he possessed narcotics, that he knew he was in possession of narcotics, that the narcotics was cocaine, that it was in fact cocaine, and that he possessed it with intent to sell, exchange or transfer it to someone else, and that he did possess it within 1500 feet of a public housing unit.” (Emphasis added.) At no time in this final charge did the trial court inform the jury that in order to convict the petitioner of the charged offense, the state had to prove beyond a reasonable doubt that he not only possessed narcotics within 1500 feet of a public housing project with the intent to sell them, but he possessed such narcotics with the intent to sell them at a specific location, which location was within that statutorily proscribed area.

Against this background, it is clear beyond question that the trial court’s instructions to the petitioner’s jury on the charge of possession of narcotics with intent to sell within 1500 feet of a public housing project, as charged in the fourth count of the information, were constitutionally deficient because they omitted all reference to or explanation of the intended-location-of-sale element of that offense, as interpreted in Denby and its progeny. By the same token, the record also clearly established that, by failing to object or except to those deficient instructions at the petitioner’s trial, defense counsel rendered a deficient performance “not reasonably competent or within the range of competence displayed by lawyers "with ordinary training and skill in the criminal law,” as required to establish ineffective assistance of counsel under the performance prong of Strickland. (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, supra, 130 Conn. App. 295. Thus, the only remaining question presented by the petitioner’s claim of ineffective assistance of trial counsel is whether he has also satisfied the prejudice prong of Strickland.

The petitioner argues that he has proved prejudice both by establishing the absence of any proper instruction on the intended-location-of-sale element of the charged offense, which left the jury without any judicial guidance as to the necessity of finding that essential element proven beyond a reasonable doubt before finding him guilty of that offense, and by the trial court’s occasional mislabeling of the charged offense in such a way as to focus the jury’s consideration of the locational requirement of the statute on the completed act of possession of narcotics rather than the intended future act of selling such narcotics. On the latter subject, in particular, the petitioner notes that after the jury returned its verdict, the court caused the clerk to poll the foreperson as follows: “What say you, Madam [Foreperson], is he guilty or not guilty of the crime of possession of narcotics within 1500 feet of a public housing project with which he stands charged?” The charge in question, so misnamed by the clerk, could only have confirmed the trial court’s erroneous instructions that only possession of narcotics need be shown to have occurred within 1500 feet of a public housing project to prove a violation of the controlling statute.

The respondent’s countering argument on the prejudice prong of Strickland is that, even if the jury was misinstructed on the essential elements of the charged offense under § 21a-278a (b), any such error was harmless under the rule of Montgomery because the omitted, intended-location-of-sale element was uncontested and supported by overwhelming evidence. See State v. Montgomery, supra, 254 Conn. 738. This argument rests upon two essential constructs. First, it was stipulated by the parties that the location of the petitioner’s arrest was within 1500 feet of a public housing project. Second, because the jury, by its verdict, necessarily found that the petitioner’s act of possessing narcotics with the intent to sell them had taken place in the location of his arrest, where he was then meeting with one or two individuals, Bruno and Sullivan, possibly to consummate a sale of narcotics, the jury’s guilty verdict unquestionably would have been the same had it properly been instructed on the intended-location-of-sale element of the charged offense. For the following reasons, we find that argument unpersuasive.

Preliminarily, it is apparent that the parties’ stipulation as to the location of the petitioner’s arrest within 1500 feet of a public housing project made no mention of the intended location of any drug sale he may then have been intending to make. Thus, it hardly constituted a confession of the omitted element or removed that element from contest before the jury in the petitioner’s trial. Furthermore, the evidence was by no means clear and uncontested, much less overwhelming, that the petitioner was engaged or about to engage in a drug sale at the time of his arrest within 1500 feet of a public housing project. He was not in fact caught in the act of selling drugs, to Bruno or anyone else. He was not found in possession of other implements of the drug sales trade. Indeed, it was suggested by certain police officers who testified at the petitioner’s criminal trial that, if their enforcement efforts interrupted a drug sale at the scene of the arrest, it was a sale by Bruno to the petitioner, not a sale by the petitioner to Bruno. Such evidence falls far short of eliminating any reasonable doubt that had the jury been properly instructed on the intended-location-of-sale element of the charged offense, it still would have found the petitioner guilty under § 21a-278a (b).

We conclude, therefore, that the petitioner has established both prongs of his claim of ineffective assistance of counsel under the test of Strickland based upon his trial counsel's failure to object or except to the trial court’s failure to instruct the jury on the intended-location-of-sale element of possession of narcotics with intent to sell within 1500 feet of apublic housing project. On that basis, we conclude further that the habeas court abused its discretion in denying the petitioner’s petition for certification to appeal from its denial of his petition for a writ of habeas corpus.

The judgment is reversed and the case is remanded to the habeas court with direction to render judgment granting the petition for a writ of habeas corpus, vacating the petitioner’s underlying conviction under § 21a-278a (b), and ordering a new trial on that offense.

In this opinion the other judges concurred.

       The petitioner also claims that the habeas court abused its discretion by precluding him from opening his case after resting in order to present the testimony of his appellate counsel in support of the claim of ineffective assistance of appellate counsel. In light of our decision to grant the petitioner relief from his challenged conviction on the basis of his substantive claim of ineffective assistance of trial counsel, however, we do not reach the merits either of this procedural claim or of the alternate substantive claim of ineffective assistance of appellate counsel to which it relates.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAIME SANTIAGO
    (AC 34519)
    DiPentima, C. J., and Sheldon and Bishop, Js.

      Argued June 3
    officially released September 3, 2013

      Jaime C. Santiago, self-represented, the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Maureen Keegan, former senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Jaime Santiago, appeals following the trial court’s initial denial and later dismissal of his motion to correct illegal sentence. On appeal, the defendant claims that the court erred in denying his motion to correct because his convictions for assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1) violated the constitutional prohibition against double jeopardy. We are not persuaded.

The following facts and procedural history are relevant to our disposition of the defendant’s claim. In affirming the defendant’s conviction on his direct appeal, this court concluded that the jury reasonably could have found the following relevant facts. “During the day, while his wife was at work, the defendant stayed at home and cared for his three month old infant son and four year old daughter. On November 30,1998, the defendant was the sole attendant and caregiver for his two children. At about 1 p.m., the infant fell from the defendant’s lap to the floor. When the defendant picked him up, the infant was crying loudly, his arms and body were shaking and his eyes were rolling. When the baby stopped crying, he became unresponsive and the defendant thought that the infant was dead. The defendant then poured water on him and shook him, after which the baby began kicking and coughing.

“Later that afternoon, the defendant’s fifteen year old daughter returned home from school and, when she saw the baby, told the defendant that the baby looked sick and that there was something wrong with his eyes. Although the defendant knew how to reach the infant’s physician, he did not seek advice or assistance for the infant until about 6 p.m., when he drove with the infant and his younger daughter to Cheshire to pick up his wife. When his wife saw the baby, she told the defendant to drive immediately to the hospital.

“The defendant and his family arrived at Waterbury Hospital at about 7 p.m., where the baby was found to be struggling to breathe, unresponsive, in distress and in need of intensive care. An examination showed evidence of brain swelling, anoxic brain injury and retinal hemorrhaging. . . .

* ⅝ *

“The injuries sustained by the baby were consistent with ‘shaken baby syndrome,’ and, in fact, that was [the director of the pediatric intensive care unit’s] diagnosis of the cause of the injuries. . . . After a trial, the jury convicted the defendant of assault in the first degree in violation of § 53a-59 (a) (3) and risk of injury to a child in violation of § 53-21 (1).” State v. Santiago, 74 Conn. App. 736, 737-38, 740, 813 A.2d 1068 (2003). The defendant was sentenced to ten years incarceration and ten years special parole on the charge of assault in the first degree. Additionally, the defendant was sentenced to ten years incarceration on the charge of risk of injury to a child. The court ordered that the two sentences be served consecutively, for a total effective sentence of twenty years incarceration and ten years special parole.

On February 10, 2012, the defendant filed a motion to correct illegal sentence pursuant to Practice Book § 43-22, primarily claiming that his consecutive sentences on the two charges of which he was convicted violated his right against double jeopardy under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The court, Damiani, J., held a hearing on the motion to correct, at the conclusion of which he denied the motion. In denying the defendant’s motion to correct, the court reasoned that double jeopardy was not violated because assault in the first degree and risk of injury are separate crimes with different elements and that the state had proved the elements of both crimes at trial. In further support of its denial, the court stated that the sentence conformed to its original sentencing intent, was not ambiguous and did not exceed relevant statutory limits. On March 7, 2012, the court, sua sponte and without explanation, revoked its prior denial of the motion to correct and dismissed the motion on the ground that it did not have subject matter jurisdiction to hear the motion to correct. This appeal followed.

Subject matter jurisdiction is a threshold issue and, therefore, before addressing the merits of the defendant’s claim, we first determine whether the court properly concluded that it lacked subject matter jurisdiction to hear the defendant’s motion to correct. PHH Mortgage Corp. v. Cameron, 130 Conn. App. 238, 241, 22 A.3d 1282 (2011) (“court must dispose of issues concerning subject matter jurisdiction as threshold matter”). “Whether a court has subject matter jurisdiction is a question of law over which our review is plenary. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal. . . . We consider the question of subject matter jurisdiction because, once raised, the question of subject matter jurisdiction must be answered before we can address the other issues raised. . . .

“Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created. ... It is well established that the jurisdiction of a sentencing court terminates once a defendant has begun serving his sentence. . . . [Therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act. . . . Practice Book § 43-22, which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence .... An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 116 Conn. App. 434, 437-38, 975 A.2d 736 (2009). “[A] challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” (Internal quotation marks omitted.) State v. Wright, 107 Conn. App. 152, 156-57, 944 A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d 1247 (2008).

As noted previously, the defendant filed his motion to correct an illegal sentence primarily on the ground that the sentences imposed violated his right against double jeopardy. A violation of a defendant’s right against double jeopardy is one of the permissible grounds on which to challenge the legality of a sentence. See State v. Delgado, supra, 116 Conn. App. 438. The state posits that the court had subject matter jurisdiction to address the merits of the defendant’s claim because his motion to correct claimed that his sentences violated double jeopardy. We agree with the state that the defendant’s claim challenges his consecutive sentences for assault in the first degree and risk of injury to a child as violating his right against double jeopardy. Thus, the defendant’s challenge is based on a lawful ground for challenging his sentence as illegal and, for that reason, the court had subject matter jurisdiction to hear the defendant’s motion to correct. We conclude, therefore, that the court’s dismissal of the defendant’s motion to correct was in error.

Having resolved the threshold jurisdictional question, we turn to the merits of the argument presented on appeal. The defendant claims that the court erroneously denied his motion to correct because his convictions for assault in the first degree and risk of injury to a child violate his right against double jeopardy. “Ordinarily, a claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard. ... In the present case, however, the defendant’s claim presents a question of statutory interpretation over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006). “In undertaking this inteipre-tation, [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. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider 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, extratex-tual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 355-56, 63 A.3d 940 (2013).

“Double jeopardy attaches where multiple punishments are imposed for the same offense in a single trial. . . . The question to be resolved is whether the two offenses charged are actually one. It must be determined, by an examination of the statutes, the information, and the bill of particulars, if any, and exclusive of the evidence introduced, whether proof of the violation of one statute requires proof of the violation of the other statute. If the elements of the greater offense include all of the elements of the lesser offense, then double jeopardy attaches. . . . [T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” (Citations omitted; internal quotation marks omitted.) State v. DeMatteo, 13 Conn. App. 596, 602, 538 A.2d 1068 (1988).

General Statutes (Rev. to 1997) § 53-21 provided, in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

Section 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person .... (b) Assault in the first degree is a class B felony provided ... (2) person found guilty under subsection (a) shall be sentenced to a term of imprisonment of which ten years of the sentence imposed may not be suspended or reduced by the court if the victim of the offense is a person under ten years of age . . . .”

It is clear from the plain language of the relevant portions of §§ 53-21 (1) and 53a-59 (a) (3) that each offense requires proof of a fact which the other does not. To satisfy the elements of § 53a-59 (a) (3), the state had to prove that the defendant, in a reckless state of mind, engaged in conduct that created a risk of death to another person—his son. To satisfy the elements of § 53-21 (1), the state had to prove that the defendant engaged in any act likely to impair the health of his son and that his son was under the age of sixteen. Section 53-21 (1) does not require the state to prove that the defendant had a specific mental state when he engaged in the prohibited conduct, whereas § 53a-59 (a) (3) requires the state to prove that the defendant had a reckless state of mind when he engaged in the prohibited conduct. Additionally, § 53a-59 (a) (3) requires the defendant to achieve a specific result—the defendant must have caused serious physical injury to his son. Section 53-21 (1) does not require the defendant to achieve any result beyond engaging in the prohibited conduct; the state can satisfy the elements of § 53-21 (1) by proving that the situation at issue would likely impair the health of the child, not that the situation in fact impaired the health of the child. Furthermore, the state is required to prove that the child has not reached the age of sixteen to satisfy § 53-21 (1). Section 53a-59 (a) (3), however, does not require the state to prove the child’s age. We conclude that assault in the first degree is a conceptually separate and distinct offense from risk of injury to a child. See also State v. Miranda, 260 Conn. 93, 126-27, 794 A.2d 506 (concluding that assault in the first degree and risk of injury to a child are separate and distinct offense for double jeopardy purposes), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).

Additionally, the defendant challenges the legality of his sentence by arguing that the imposition of consecutive sentences violated General Statutes §§ 53a-37, 53-21 and 53a-59 (a) (3). “When multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other . . . .” General Statutes § 53a-37. “When two separate statutory offenses are charged, one not being a lesser included offense of the other, and cumulative punishment is authorized by the legislature, cumulative punishments may be imposed at the conclusion of a single trial regardless of whether the acts of the defendant are divisible, as long as they are part of the same transaction.” State v. Gilchrist, 24 Conn. App. 624, 630, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). The law is clear that § 53a-37 allows trial courts to impose consecutive sentences for multiple offenses.

Accordingly, the defendant’s convictions for both offenses were not constitutionally defective and the separate consecutive sentences for these offenses were proper.

The form of judgment is improper, the judgment of dismissal is reversed and the case is remanded with direction to reinstate the judgment denying the defendant’s motion to correct an illegal sentence.

In this opinion the other judges concurred.

       The defendant is a self-represented party. At the hearing on his motion to correct, an attorney from the Office of the Public Defender represented to the court that, upon reviewing the defendant’s claim, he found no sound basis for the defendant’s motion to correct. “[A] defendant has a right to the appointment of counsel for the purpose of determining whether a defendant who wishes to file [a motion to correct] has a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion.” State v. Casiano, 282 Conn. 614, 627-28, 922 A.2d 1065 (2007).

       All references in this opinion to General Statutes § 53-21 are to the 1997 revision of the statute.

       The relevant language of § 53a-59 remains unchanged since before the defendant’s conviction in 1997. Section 53a-59 (b) requires the state to prove that the alleged victim had not reached ten years of age for the sentencing court to impose a mandatory minimum sentence of ten years. We acknowledge the United States Supreme Court’s recent decision holding that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Mleyne v. United States, U.S. , 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013).

       General Statutes § 53a-37 provides: “When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”

       The defendant also claims that the trial court misled him into believing that the court would rule in his favor by reading a portion of his brief aloud and thanking the defendant for his effort. The defendant, however, does not argue that he suffered prejudice from this claimed error. We decline, therefore, to consider the defendant’s claim.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. DONNA DUNSTAN
    (AC 33789)
    Graendel, Alvord and Foti, Js.

      Argued May 30
    officially released September 3, 2013

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were GailP. Hardy, state’s attorney, and CathrynJ. Krinitsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered following a jury trial, of two counts of assault of a public safety officer in violation of General Statutes § 53a-167c (a) (1), two counts of interfering with an officer in violation of General Statutes § 53a-167a, and one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). On appeal, the defendant claims that the court (1) improperly rejected her request to charge the jury regarding her right to protect herself against an officer’s unlawful use of force, (2) improperly declined to instruct the jury on the charge of interfering with a police officer as a lesser included offense, (3) unconstitutionally enlarged the offenses of assault of a public safety officer through its supplemental charge on causation, (4) improperly merged the conviction on count four, with count two, as a lesser included offense, and (5) abused its discretion by denying her application for accelerated rehabilitation. We affirm in part and reverse in part the judgment of the trial court.

Shawn Ware, a Hartford police officer, was assigned to direct traffic for construction workers at a site in Hartford on June 22, 2010. While directing traffic, Ware paused to provide directions to a driver. During this time, the defendant, a passenger in the car immediately behind the vehicle receiving directions, continually sounded her car’s horn and loudly yelled obscenities from the passenger window. After the first car drove away, Ware directed the driver of the second car to pull over and approached the passenger side of the vehicle in order to arrest the defendant.

Ware asked the defendant her name and directed her to exit the vehicle. The defendant refused to comply and locked the passenger door. When the driver unlocked the car doors, Ware opened the passenger door and placed himself between the open door and the defendant. The defendant attempted to pull the door closed, hitting Ware in the process. Ware then sprayed one burst of oleoresin capsicum (pepper spray) toward the defendant’s face. When Ware began to remove the defendant from the vehicle, she started swinging at Ware and punching his upper body. Once outside of the vehicle, the defendant continued swinging and kicking at Ware, punching his upper body and kicking his legs. During the altercation, Ware sprayed the defendant with pepper spray a second time and called for assistance.

Sergeant Edward Yergeau was the first officer to respond to the scene. Yergeau observed Ware defending himself against a woman who was striking him in the upper torso while loudly screaming expletives. After the defendant refused to comply with Yergeau’s verbal commands to he on the ground, he struck the defendant several times on her back with his baton. When the defendant continued struggling with the officers, Yer-geau grabbed her arm and eventually kicked her legs out from under her, forcing the defendant to the ground. In the process, the defendant twisted her body and slammed into Yergeau while trying to escape from his grasp. A third police officer, Brian Bishop, arrived on the scene shortly thereafter and helped the other two officers gain control of the defendant and place her under arrest. Ware and Yergeau were injured dining the altercation with the defendant. Ware suffered bruising on his arms and chest while Yergeau suffered a tom rotator cuff.

The jury found the defendant guilty on all counts. The trial court merged the conviction on the fourth count of interfering with an officer with the second count of assault of a public safety officer and sentenced the defendant to a five year term of imprisonment, execution suspended after one year, and four years of probation. This appeal followed. Additional facts are set forth as necessary.

I

The defendant first claims that the court improperly rejected her request to charge the jury regarding her right to protect herself against the unlawful use of physical force, thereby violating her right to due process. According to the defendant, the court’s failure to fully instruct on General Statutes § 53a-22 improperly relieved the state of its burden to prove all elements of the crimes of assault of a public safety officer and interfering with an officer. We are not persuaded. The following facts are necessary to our resolution of this issue.

The defendant submitted proposed jury instructions pertaining to the assault charge that, in part, instructed the jury that the state must prove beyond a reasonable doubt that the officer actually believed that she committed an offense and the degree of force used was necessary, and that these beliefs were reasonable. The proposed instructions also provided that “[t]he evidence in this case raises the defense that the [officers] were not justified in the degree of physical force used in making an arrest. . . . [I]f you find that the state has proved each element of [a]ssault on a [p]eace [o]ffi-cer . . . you must go on to consider whether or not the [officers] were justified in their use of force. . . . [T]he state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant was justified in her use of force.”

The corut declined to give the requested charge and included the standard instructions, which require the jury to find that the force used by the police was reasonably necessary under the circumstances. The court concluded that the standard instruction would be sufficient and fair to the defendant, noting that the defendant’s proposed instruction would be more appropriate in a case in which affirmative evidence or witness testimony was presented regarding claims of police assault or excessive use of force.

As a preliminary matter, we set forth the standard of review and legal principles that will guide our analysis. “Our review of the defendant’s claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the [trial] court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Stovall, 142 Conn. App. 562, 577, 64 A.3d 819, cert. granted on other grounds, 309 Conn. 917, 70 A.3d 40 (2013). “An error in instructions in a criminal case is reversible error when it is shown that it is reasonably possible for errors of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.” (Internal quotation marks omitted.) State v. Kurrus, 137 Conn. App. 604, 609, 49 A.3d 260, cert. denied, 307 Conn. 923, 55 A.3d 566 (2012).

Our Supreme Court has determined that in a case in which a defendant is charged with assault of a peace officer or interfering with an officer, in lieu of a self-defense instruction, the court must provide “a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest . . . .” State v. Davis, 261 Conn. 553, 571, 804 A.2d 781 (2002). This court has further concluded that an officer’s exercise of reasonable force is inherent in the performance of duties, and therefore unreasonable and unnecessary force by a police officer would place the actions outside the performance of that officer’s duties. State v. Baptiste, 133 Conn. App. 614, 627, 36 A.3d 697, cert. granted on other grounds, 304 Conn. 921, 41 A.3d 661 (2012); State v. Salters, 78 Conn. App. 1, 5-6, 826 A.2d 202, cert. denied, 265 Conn. 912, 831 A.2d 253 (2003). Whether an officer is acting in the performance of his duties “is ultimately a factual question to be determined by the jury, taking into account all of the circumstances of the case . . . .” State v. Davis, supra, 572.

The defendant cannot prevail on her claim of instructional error. In the present case, the court instructed on more than one occasion that the state bears the burden of proof to establish each element of assault and interference beyond a reasonable doubt, including the element of “in the performance of his duties . . . .” When charging the jury on the element of “in the performance of his duties,” the court instructed the jury that it must necessarily consider the law that justifies an officer’s use of physical force in effectuating an arrest. In fact, the court specifically instructed: “If you find that . . . the force used by the officer was not reasonable, you will find that the officer was not acting within the performance of his official duties . . . .’’(Emphasis added.) See State v. Baptiste, supra, 133 Conn. App. 627; State v. Salters, supra, 78 Conn. App. 5-6. The court’s instructions drew the jury’s attention to the fact that it must determine, as a matter of fact, whether the officer’s use of force was reasonable as part and parcel of its determination of whether the officer was acting in the performance of his duties. Moreover, in finding that the officer’s use of force was reasonable, and therefore, that he was acting in the performance of his duties, the jury would necessarily have considered whether resistance by the defendant was justified. State v. Davis, supra, 261 Conn. 571 (person not required to submit to unlawful use of physical force'). Accordingly, we conclude that the jury instructions properly framed the issues and that it was not reasonably possible that the jury was misled.

II

The defendant’s second claim is that the court improperly declined to instruct the jury on the charges of interfering with a police officer as a lesser included offense of the charges of assault of a public safety officer. We are not persuaded.

In count two of the amended information, the state alleged that the defendant assaulted Yergeau, causing physical injury to him by acts including, but not limited to, physically striking him. In count four of the amended information, the state alleged that the defendant interfered with the performance of Yergeau’s duties by engaging in acts of physical resistance toward him. The defendant requested that the jury be instructed that interfering constituted a lesser included offense of the charge of assault, as it pertained to Yergeau. The court denied the defendant’s request, concluding that there was enough information to allow the jury to distinguish between the claims made by the state relating to the interfering and assault charges, respectively. In so concluding, the court observed that instructing the jury that the interfering charge constituted a lesser included offense as to Yergeau, but not as to Ware, could result in jury confusion. The court further noted that should the jury find the defendant guilty of both charges, the more appropriate course of action would be to merge the conviction of these offenses.

We disagree with the defendant that the court’s instructions were improper and conclude that her reliance on States v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), as dispositive of this claim is misplaced. The cases relied upon by the defendant apply the Whistnant factors to uncharged lesser included offenses. See, e.g., State v. Smith, 262 Conn. 453, 455, 815 A.2d 1216 (2003); State v. Vass, 191 Conn. 604, 616, 469 A.2d 767 (1983); State v. Jefferson, 114 Conn. App. 566, 571-72, 970 A.2d 797, cert. denied, 292 Conn. 921, 974 A.2d 722 (2009). In the present case, however, the defendant was charged in the information with two counts of assault and two charges of interfering. Furthermore, the defendant has not provided this court with any authority to support her argument that Whistnant is dispositive under circumstances in which the lesser included offenses have been independently charged in the information. It is well established that “[a]s long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Vilchel, 112 Conn. App. 411, 417, 963 A.2d 658, cert. denied, 291 Conn. 907, 969 A.2d 173 (2009). On the basis of our review of the entire charge, we cannot conclude that the court erred by declining to give the requested instruction in order to avoid potential jury confusion.

Ill

The defendant’s third claim of error is that the trial court’s supplemental charge on causation unconstitutionally enlarged the offenses of assault of a public safety officer as charged in the information. According to the defendant, the court improperly permitted the jury to find that she had caused injury to the officers in a manner that was not charged in the information. We disagree.

The state charged, in counts one and two of its information, that the defendant assaulted Ware and Yergeau, respectively, by acts “including but not limited to evidence that the defendant physically struck” the officers. In the state’s response to the defendant’s request for a bill of particulars and essential facts, the state specified that the defendant assaulted the officers by physically striking them and by physical actions including, but not limited to, “hitting, punching, striking, pushing, kicking and/or flailing.”

During deliberations, the jury submitted a question to the court, asking, “what is the definition of the word caused? Is there a difference such as direct or indirect.” The court provided an additional instruction on causation, stating, in part: “Cause does not necessarily mean the last act or cause, or the act in point of time nearest to the injuries. ... An act is a cause of the injuries when it substantially and materially contributes, in the natural and continuous sequence, unbroken by an efficient, intervening cause, to the injuries.” The court then charged the jury regarding cause in fact and proximate cause. The court concluded the charge by directing the jury to consider the defendant’s behavior, instructing that “the cause here is related to the conduct that the defendant is alleged to have engaged in. In the information, the state alleged, in both counts one and two . . . [that the defendant] caused physical injury to such peace officer ... by conduct including but not limited to evidence that the defendant physically struck Officer Shawn Ware. . . . Struck can mean hit, punch, kicked, pushed, some sort of force .... So, again, in considering cause, the reference to causation is whether the conduct . . . having been done by the defendant, which is some sort of striking, was a cause of the injuries.”

We first set forth our standard of review. “A claim that the court’s jury instructions improperly enlarged the scope of the offense charged implicates the criminal defendant’s sixth amendment rights, under the federal constitution, to be sufficiently informed of the nature of the charges against him.” State v. Booker, 28 Conn. App. 34, 46, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 829 (1992), cert. denied, 507 U.S. 916, 113 S. Ct. 1271, 122 L. Ed. 2d 666 (1993). “The function of an accusatory pleading such as an information is to inform a defendant of the nature and cause of the accusation as required by our federal and state constitutions. . . . [That] the offense should be described with sufficient definiteness and particularity as to apprise the accused of the nature of the charge so he can prepare to meet it at his trial . . . are principles of constitutional law [that] are inveterate and sacrosanct. . . .

“[E]nlargement cases involve claims that the trial court expanded the state’s information by instructing the jury on statutory or factual alternatives not charged in the information. ... It is incumbent upon the defendant in an enlargement case to demonstrate that the trial court’s charge caused him unfair surprise or prejudiced him in the preparation of his defense. ... In other words, the defendant must show that: (1) the challenged jury instructions improperly enlarged the charges brought against him; and (2) such enlargement was prejudicially harmful. The defendant’s enlargement claims, like other claims that jury instructions violated a constitutional right, require us to exercise plenary review as we examine the charge as a whole to determine whether it misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. David N.J., 301 Conn. 122, 158, 19 A.3d 646 (2011).

The defendant’s argument that the court’s instruction allowed the jury to find the defendant guilty if it found that her conduct set off a chain of events that led to the officers’ injuries is unpersuasive. The information alleged that the defendant caused injury to the officers by acts, including but not limited to, physically striking them. Although the court instructed the jury on indirect and proximate cause, it limited these broader instructions by explicitly directing the jury to consider the defendant’s conduct, as specifically alleged in the information and the bill of particulars, when considering causation. In fact, the trial court expressly stated to the jury that “the reference to causation is whether the conduct . . . having been done by the defendant, which is some sort of striking, was a cause of the injuries.” “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions.” (Internal quotation marks omitted.) State v. Booker, supra, 28 Conn. App. 47. Accordingly, we conclude that the court’s supplemental jury instruction did not improperly expand the charges with which the defendant was charged.

IV

The defendant further claims that the court improperly merged the conviction of interfering with an officer and assault of a public safety officer as they pertained to her conduct toward Yergeau. We agree.

Following the jury’s verdict, the court merged the interfering charge set forth in count four, with the greater offense, the assault charge set forth in count two. During the defendant’s sentencing hearing, the court, Newson, J., noted that the conviction of the two charges had been merged because the crime of interfering constituted a lesser included offense of the crime of assault. Accordingly, the court sentenced the defendant on a single count of interfering with an officer.

Recently, our Supreme Court has concluded that “the vacatur approach shall replace the use of the merger of convictions approach when a defendant is convicted of greater and lesser included offenses.” State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013). Accordingly, “when a defendant is convicted of greater and lesser included offenses, the trial court shall vacate the conviction for the lesser offense rather than merging it with the conviction for the greater offense.” Id., 260. We agree with the parties that Polanco is controlling in the present case and, therefore, conclude that the lesser included offense must be vacated, rather than merged.

V

The defendant finally claims that the court abused its discretion by denying her request for accelerated rehabilitation pursuant to General Statutes § 54-56e. We disagree.

The record reveals the following relevant facts. On October 25, 2010, the court, Carbonneau, J., held a hearing to determine the defendant’s eligibility for accelerated rehabilitation. During that hearing, the court reviewed a letter submitted by the alternative incarceration center noting that the defendant had missed at least one appointment. Yergeau testified in opposition to the defendant’s application for accelerated rehabilitation. The court noted that the defendant’s alleged noncompliance with the center “speaks of, if not an inability, an unwillingness to fully cooperate,” but continued the matter to allow the defendant more time to comply with the program’s requirements.

The court held a second hearing to determine the defendant’s eligibility for accelerated rehabilitation on December 3,2010. The prosecutor objected on the basis of the violent nature of the incident and the fact that the defendant again had failed to fully comply with the alternative rehabilitation center program. Defense counsel argued that the defendant’s compliance with the program had improved and that she missed only one scheduled meeting due to illness. Yergeau again objected to the defendant’s application for accelerated rehabilitation due to the injuries he sustained during his altercation with the defendant. Yergeau testified that he had been unable to return to work since that date, attends physical therapy three times a week, and still has a limited range of motion in his right arm. The defendant then testified that her actions were the result of Ware’s improper use of force. The court denied the defendant’s motion for accelerated rehabilitation, concluding that this case is “not a factual basis . . . which should ... be left untested” in light of the defendant’s allegations of unlawful force.

“The granting or denial of an application for accelerated rehabilitation implicates the exercise of discretion by the trial court. . . . Our review of the trial court’s exercise of its discretion is limited to the questions of whether the court correctly applied the law and whether it could reasonably conclude as it did. ... It is only where an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. . . . Every reasonable presumption will be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Rios, 110 Conn. App. 442, 447-48, 954 A.2d 901 (2008).

We disagree with the defendant’s assertion that the court failed to consider the proper statutory criteria. Both the prosecutor and Yergeau objected to the defendant’s application, and Yergeau alleged that he suffered serious injuries as a result of the altercation. Additionally, the record reveals that the defendant did not fully comply with court orders. The court had before it evidence that the defendant had not complied with the alternative incarceration center’s program in October, noting that the defendant’s explanation as to her absences indicated an. “inability, if not an unwillingness to fully cooperate.” Despite the defendant being given an opportunity to fully comply with the program, the court learned during the December, 2010 hearing that the defendant had again failed to attend a program meeting. Considering the defendant’s failure to comply with court orders coupled with her allegations that her actions were justified, the court reasonably could have concluded that she would be unlikely to accept responsibility for the allegations and therefore may be likely to offend in the future. See State v. Rios, supra, 110 Conn. App. 453-54 (“Neither the statute nor our case law sets forth a test by which to evaluate the court’s determination in this regard. Logically, such a determination must be reached on the basis of the facts and circumstances before the court that are relevant to predicting such future conduct.”). In light of the facts brought before the court concerning the defendant, and affording every reasonable presumption in favor of the court’s ruling, we cannot conclude that the court’s decision constituted an abuse of discretion.

The judgment is reversed only as to the conviction of interfering with an officer as set forth in count four and the case is remanded with direction to vacate that conviction. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant stated that her name was “Candace Matthews”; Ware subsequently learned that this was a false name.

       We note that the third count of interfering with an officer was not merged with the first count of assault of a public safety officer. The defendant’s conduct in supplying Ware with a false name provided an independent factual basis to support the interfering charge distinct from the defendant’s physical resistance toward Ware.

       General Statutes § 53a-22 provides in relevant part: “(a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of physical force to make an arrest ....
      “(b) Except as provided in subsection (a) of this section, a peace officer ... is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to . . . [e]ffect an arrest ... of a person whom he or she reasonably believes to have committed an offense . . . .”

       We note that our Supreme Court granted certification to appeal in State v. Baptiste, 304 Conn. 921,41 A.3d 661 (2012), limited to the following issue: “Did the Appellate Court properly determine that the trial court’s instructions to the jury regarding the charge of assault of a peace officer were inadequate?”

       The court charged the jury with the following instruction regarding the interrelation between the use of force and the element, “in the performance of his duties”: “In determining whether the officer was acting in the performance of his duties, you must consider another . . . law that justifies the use of physical force by officers in making an arrest. . . . [A]n officer is justified in using physical force upon another person when and to the extent he reasonably believes such to be necessary to effect an arrest of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized. An officer’s use of force to effect an arrest is justified only so far as he reasonably believes that a person has committed an offense.” (Emphasis added.)

       The defendant also asserts that the instruction relieved the state of its burden to prove her intent in using force against the officers and failed to properly outline the test to be applied in ascertaining the reasonableness of the officers’ beliefs. Because our conclusion that the court’s instructions properly framed the issues pertaining to §§ 53a-167c and 53a-22 is dispositive, we need not address these arguments.

        Whistnant sets forth a four-pronged test, which entitles a defendant to an instruction on a lesser offense if: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Smith, 262 Conn. 453, 458, 815 A.2d 1216 (2003).

       A similar right is set forth in article first, § 8, of the Connecticut constitution. See State v. David N.J., 301 Conn. 122, 158, 19 A.3d 646 (2011).

       The defendant sought review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), however, our Supreme Court stated that “[t]o the extent that. . . defendants seek to have the rule enunciated in this opinion apply to their merged convictions, they may do so simply by requesting the administrative relief ordered in the present case. In the event of such a request, the responsible official for the judicial district involved will comply with the request and modify the subject record accordingly.” Id., 260 n.10. For this reason, we need not conduct an analysis pursuant to Golding, and instead direct the trial court to provide the relief set forth in Polanco.

       The parties agreed at oral argument before this court that resentencing upon remand is not necessary in the present case.

       General Statutes § 54-56e provides in relevant part: “(a) There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime . . . for which a sentence to a term of imprisonment may be imposed, which crimes or violations are not of a serious nature.
      “(b) The court may, in its discretion, invoke such program on motion . . . with respect to a defendant (1) who, the court believes, will probably not offend in the future, (2) who has no previous record of conviction of a crime . . . and (3) who states under oath . . . or . . . under the penalties of perjury, that the defendant has never had such program invoked in the defendant’s behalf . . . .”