text:
    STATE OF CONNECTICUT v. DANTE SMITH
    (AC 34529)
    Lavine, Robinson and Peters, Js.

      Argued November 21, 2013
    officially released April 1, 2014

      Raymond L. Durelli, assigned counsel, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom were Russell Zentner, senior assistant state’s attorney, and, on the brief, Peter A. McShane, state’s attorney, for the appellee (state).

       The listing of the judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVINE, J.

The defendant, Dante Smith, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). On appeal, the defendant claims that the court improperly denied his motion to suppress with respect to statements he made (1) at the crime scene and (2) later at the police station during his booking. We.affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the night of March 9, 2010, the victim, Justin Molinaro, was driving his Audi A4 in the vicinity of Maplewood Terrace, a public housing complex in Mid-dletown known to be a high crime area. As he drove past the complex, two unidentified men flagged him down and informed him that his cousin, the defendant, wanted to speak with him. The victim drove his car into a parking lot at Maplewood Terrace, where he saw the defendant get into the backseat of another car. The victim exited his Audi and asked the defendant what he wanted. While the victim was waiting for the defendant, he saw Tykeem Privott, who was also in the car with the defendant. The victim noticed that Privott had a supply of marijuana on his lap and began to chastise Privott for his drug use. As the victim talked to Privott, the defendant got out of the car wielding a Louisville Slugger aluminum baseball bat, which he used to strike the victim on the head. The blow knocked the victim to the ground, and the victim asked the defendant, “[W]hat the hell is going on?” The other occupants of the vehicle then exited the car and began to kick and punch the victim as he lay on the ground.

Privott picked up the Louisville Slugger and swung it at the victim, striking him on the back of his neck. The defendant choked the victim and told him to “go to sleep, motherfucker.” The defendant ordered his accomplices to go through the victim’s pockets, which they did, taking his cell phone, wallet, and the keys to the Audi.

As the assailants left, the victim stumbled to his feet. He found his car keys in a patch of grass near the parking lot. The defendant, however, reappeared and said, “What, you didn’t have enough yet?” and pointed a black handgun in the victim’s face. The defendant took the keys to the Audi and said, “This shit is mine.” The victim then saw Privott, who was now also holding a handgun. Privott asked the defendant, “Do you want me to pop this motherfucker?” The defendant then turned and left in the Audi.

The victim walked to a nearby house and called 911. He reported to the dispatcher the details of the assault and carjacking. While on the telephone with the dispatcher, the victim saw the Audi double back, headed in the direction of Maplewood Terrace. He told the dispatcher that six people were returning in his car with guns, and he asked the dispatcher to send help.

The police arrived on the scene, and police officers attended to the victim. One police officer later stated that the victim looked “like an alien” because the area around his left eye was bloodied, swollen, and disfigured. The swelling around the victim’s eyes rendered him nearly blind. The victim was gasping for breath and making statements to the effect of, “I don’t want to die.” When asked what happened, the victim responded, “Dante Smith and Tykeem Privott did this. Dante had a bat and Tykeem had a gun.” The victim faded in and out of consciousness and his respiration was irregular. Emergency workers arrived and transported him to the hospital.

After treating the victim, the police processed the crime scene and secured the area surrounding Maple-wood Terrace, where a crowd had gathered. Approximately forty minutes after the assault took place, a black male calmly approached police Officers Dan Smith and Nicolas Puorro. As he drew near, he stated, “I am Dante Smith, my grandmother said the police were looking for me.”

On the basis of the information provided by the victim, the police had reason to believe that the defendant was involved in an assault that involved both firearms and a baseball bat. The police informed the defendant that they had to place him in handcuffs for safety reasons, and that they had an obligation to protect both themselves and the surrounding crowd. The defendant stated that he understood, and that he also understood that he was not under arrest.

The police asked the defendant whether he had any weapons; he replied that he did not. The police frisked the defendant, but found no weapons. The defendant was asked whether he knew where the weapons were, to which he responded, “What weapons?” When asked about Privott, the defendant denied knowing him. The defendant was then asked what happened that evening. The defendant stated that he had been involved in a fight with the victim, and that he and the victim were cousins. He told the police that the victim had called him and wanted to go for a ride. The defendant stated that once he was in the car with the victim, the victim wanted to go and buy drugs. The defendant stated that he did not want to buy drugs and wanted to get out of the car. When the victim did not stop the vehicle, the defendant stated that he punched the victim in the face several times.

Upon hearing the defendant’s narrative, the police informed him that it appeared as if the victim had been struck with a baseball bat, and that the injuries occurred to the left side of his face, which was inconsistent with the defendant’s story that the victim was driving. The defendant grew frantic and stopped cooperating with the police, stating, “Do what you got to do, arrest me, arrest me.” The defendant was placed under arrest and transported to police headquarters.

The defendant was charged in a seven count amended information, which included two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant thereafter filed a motion to suppress the statements he made to the police at the crime scene and during his booking at the police station, arguing that they were inadmissible pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A hearing on the motion to suppress was held during which the defendant argued that the statements he made to the police while he was handcuffed at the crime scene should be suppressed because he was in police custody and interrogated without having received Miranda warnings. The court denied the motion, finding that the defendant was not in custody at the crime scene, and alternatively, that the public safety exception to Miranda applied. The court also found, with respect to the statements made at the police station during his booking, that the defendant was properly advised of his Miranda rights and that he waived his rights when, during his booking, he repeated the statement he made to the police at the crime scene.

Following a trial, the jury found the defendant guilty of two counts of the lesser included offense of assault in the second degree in violation of § 53a-60 (a) (1), and rejected the defendant’s claim of self-defense. The defendant was found not guilty of all other charges. The court merged the two assault convictions and sentenced the defendant to a total effective term of five years incarceration, execution suspended after forty months, followed by five years probation with special conditions. This appeal followed.

On appeal, the defendant claims that the admission of his statements to the police violated his fifth amendment rights and reasserts a claim he made at trial that he was subjected to custodial interrogation without Miranda warnings at the crime scene. The defendant also claims that the statements he made at the police station during his booking were inadmissible under the doctrine established in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). We affirm the judgment of the trial court.

I

We begin by analyzing the defendant’s claim that the trial court erred when it denied his motion to suppress the incriminating statements that he made at the crime scene.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the [trial court’s] decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

The defendant argues that he was in custody as soon as the police handcuffed him, and, therefore, he was entitled to Miranda warnings when he was questioned. The state, on the other hand, argues that the defendant was not in custody, and, alternatively, that the public safety exception to Miranda applies. Because we agree with the state that the public safety exception applies to the facts of this case, we do not need to decide whether the defendant was in custody for the purposes of Miranda.

As our Supreme Court has noted, “The United States Supreme Court first articulated the public safety doctrine in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). In Quarles, ayoung woman approached two police officers in their patrol car and informed them that a man armed with a gun had just raped her. Id., 651. She described her assailant and told the officers that the man had just entered a nearby supermarket. Id., 651-52. The officers entered the supermarket, located a man, Benjamin Quarles, who matched the description given, and apprehended him after a brief pursuit through the store. Id., 652. One officer frisked Quarles and detected an empty shoulder holster before handcuffing him. Id. Before reading him his Miranda rights, the officer asked Quarles where the gun was, and Quarles responded, ‘the gun is over there.’ Id. Quarles subsequently was charged with criminal possession of a weapon. Id. The trial court granted, and the New York Court of Appeals affirmed, Quarles’ motion to suppress both the gun and the statement because the officer had not given him his Miranda warnings. Id., 652-53.

“The United States Supreme Court, however, reversed the New York Court of Appeals’ decision. Id., 660. It held that both the statement and the gun were admissible under the public safety exception because the ‘concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.’ Id., 653. The court reasoned that ‘the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.’ Id., 657. Furthermore, the court explained that the exception ‘simply [frees officers] to follow their legitimate instincts when confronting situations presenting a danger to the public safety.’ Id., 659. The court ‘decline[d] to place officers ... in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.’ Id., 657-58. The court explained that questions must ‘relate to an objectively reasonable need to protect the police or the public from any immediate danger . . . .’ Id., 659 n.8” State v. Betances, 265 Conn. 493, 502-503, 828 A.2d 1248 (2003).

Quarles instructs that rigid adherence to the prophylactic rule enunciated in Miranda must be balanced against the need for immediate information in a developing situation that may pose a threat to public safety. In the present case, in the wake of a violent assault, there was a need for information related to the location of weapons and the whereabouts of the potentially armed coassailants. We note that the defendant was asked a few pointed questions specifically related to the public safety concerns of the police. Aside from the fact that the defendant was handcuffed, there were no coercive or intimidating actions undertaken by the police. In fact, the defendant voluntarily approached the police and initiated a conversation with them near the crime scene. He appeared to be calm, not under the influence of drugs, and ready to tell his narrative. The record reveals that the conversation the police had with the defendant was initially relaxed, and that he consented to and understood why he was being handcuffed. The questioning also took place in public, by two police officers who did not display their weapons. This initial interaction between the police and the defendant lasted for less than two minutes.

Given the brutal nature of the assault on the victim and the report that a baseball bat and firearms were used, the police had a legitimate concern that there were both unsecured weapons and as many as five armed assailants in the vicinity of Maplewood Terrace. As in Quarles, the police had information that the defendant had been armed, and therefore reasonably feared that a gun could be in the vicinity. Furthermore, what posed a particularly acute threat to public safety was the large number of bystanders who had emerged from their residences and gathered at the crime scene.

The defendant argues that as soon as the police frisked him and found no weapons, any public safety concerns were dispelled. We decline to take such a view, which is based on 20/20 hindsight and information not then known to the police. As the Supreme Court noted in Quarles, “[i]n a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing . . . .” New York v. Quarles, supra, 467 U.S. 656.

We therefore conclude, as the United States Supreme Court did in Quarles, that the danger to innocent bystanders, the investigating officers, and the defendant himself constituted an objective threat to public safety. See State v. Betances, supra, 265 Conn. 504 (“the public safety exception applies to individual members of the public, including defendants, as well as to the public at large” because “[w]hen a life is in danger, the law should make no distinctions”). Accordingly, on the basis of our review of the record, we conclude that the court properly determined that the public safety exception to Miranda was applicable to the facts of this case when it denied the defendant’s motion to suppress.

II

The defendant’s second claim is that, notwithstanding the fact that the police read him his rights prior to his making incriminating statements during the police booking procedure, those statements are inadmissible under the doctrine established in Missouri v. Seibert, supra, 542 U.S. 600. That doctrine stands for the narrow proposition that, when the police deliberately violate Miranda in the first instance, and then obtain the same confession with proper Miranda warnings at a later time, the defendant’s confession is tainted and inadmissible. See id., 613-14. Because we conclude that the statements the defendant made at the crime scene were admissible under the public safety exception to Miranda, the doctrine enunciated in Seibert is inapplicable.

The judgment is affirmed.

In this opinion the other judges concurred.

      The defendant argues that the question “what happened here?” was outside of the public safety exception because the question invited a response that was broader than the specific concern for public safety. We disagree. The overall nature and context of the questions the police asked the defendant pertained to the safety and well-being of the public. At the suppression hearing Officer Smith testified: “So, I basically started asking [the defendant] are there any weapons that we should be aware of, is there anything around on the complex. We felt that something may have been discarded, somebody, a civilian could have come into possession of a gun or weapon. He said no, there’s no weapons. I started asking him what happened, if he knew anything, if he was involved in this assault because this is what the victim had said and he said that he had been involved in an assault with [the victim], but he had not used any weapons.”
      In our view, the focus of the questioning was still related to the location of the weapons. We agree wholeheartedly with the United States Court of Appeals for the Second Circuit that “a question need not be posed as narrowly as possible, because ‘[precision crafting cannot be expected’ in the circumstances of a tense and dangerous arrest. . . . Thus, a question that plainly encompasses safety concerns, but is broad enough to elicit other information, does not necessarily prevent application of the public safety exception when safety is at issue and context makes clear that the question primarily involves safety.” (Citation omitted.) United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005), cert. denied sub. nom DeJesus v. United States, 547 U.S. 1048, 126 S. Ct. 1637, 164 L. Ed. 2d 348 (2006).

       The trial court forrad that “[the defendant] immediately took responsibility for the assault on the [victim], admitting that he punched him in the face several times.” The defendant claims that this finding was clearly erroneous as it implies that the defendant made the statements at issue spontaneously and not in response to police inquiries. Although it is true that the defendant did not spontaneously launch into his account and that his responses followed police inquiry, the trial court’s finding does not impact our public safety exception analysis, which allows for limited questioning.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    GINSBERG AND GINSBERG, LLC, TRUSTEE OF THE WIYOT TRUST v. ALEXANDRIA ESTATES, LLC, ET AL.
    (AC 35759)
    Lavine, Beach and Alvord, Js.

      Argued January 22
    officially released April 1, 2014

      Frank J. Kolb, Jr., with whom, on the brief, was Joseph A. DiSilvestro, for the appellant (defendant John Neubig).

      Frank B. Velardi, Jr., for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant John Neubig appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Ginsberg & Ginsberg, LLC, trustee of the Wiyot Trust, after remand by this court for a determination of priorities. See Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, 136 Conn. App. 511, 48 A.3d 101 (2012). On appeal, the defendant claims that the trial court improperly (1) relied solely on two warranty deeds to support its determination that the plaintiffs mortgage had priority over the defendant’s claimed interest in the subject property, (2) “failed to allow” the plaintiffs counsel to testify with respect to the title search he had prepared in connection with the foreclosure action, and (3) “followed an inappropriate directive from the Appellate Court” in the remand order. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff commenced this action to foreclose an $800,000 mortgage against the mortgagor, Alexandria Estates, LLC (Alexandria Estates), and subsequent encumbrancers. An issue arose between the plaintiff and the defendant over the defendant’s claimed entitlement to the payment of $35,000 for each lot that might be developed on the subject property. According to the defendant, his interest was secured by an agreement between him and Dale Construction 01, LLC (Dale Construction), that had been recorded in the land records prior to the recording of the plaintiffs mortgage. The defendant filed a motion to determine priorities, and the trial court concluded that his interest was prior in right to the plaintiffs mortgage. After a judgment of strict foreclosure was rendered, the plaintiff appealed to this court. This court reversed the judgment and remanded the case to the trial court for the purpose of determining lien priorities in accordance with this court’s opinion. Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 136 Conn. App. 517.

At the remand hearing held on August 29, 2012, the trial court first asked counsel to address this court’s remand order and their understanding of the scope of the remand hearing. The plaintiffs counsel stated that the trial court had been directed to examine the deed from the defendant to Alexandria Estates, to determine whether the conveyance had been made subject to the agreement between the defendant and Dale Construction. If the conveyance had not been made subject to the agreement, it was the plaintiffs position that its mortgage was prior in right to the defendant’s interest, if any, in the subject property. The defendant’s counsel responded: “I do not 100 percent agree with the Appellate Court that a review of the deed is going to resolve this whole matter.” He urged the trial court to consider prior deeds in the chain of title. The only exhibits submitted as evidence at the remand hearing were the two deeds to the subject property from the defendant to Alexandria Estates. Neither deed referenced the agreement between the defendant and Dale Construction.

During the remand hearing, the defendant’s counsel indicated that he had subpoenaed one of the plaintiffs attorneys, David Babbitz, to appear at the hearing “to testify regarding the title search and steps taken to cure any defects that may have been discovered.” In response to the subpoena, the plaintiff filed a motion to quash claiming, inter alia, that the evidence sought was irrelevant and inadmissible with respect to the limited issue to be addressed on remand, and that the defendant’s attempts to secure such testimony “jeopardizes the attorney-client privilege Attorney Babbitz holds with the plaintiff and puts Attorney Babbitz in a position where he could violate the Rules of Professional Conduct.” The court stated that it would address the motion to quash at a subsequent proceeding if it determined that additional information relative to the title search was appropriate under the remand order.

On September 4, 2012, the court issued the following order: “On August 29, 2012, the court held a hearing on the [motion for determination of priorities] at which evidence was taken. Upon review of the evidence, including the deed between [the defendant] and . . . Alexandria Estates, the court finds no reference to the Neubig-Dale Construction construction agreement. As a result, in accordance with the decision of the Appellate Court, the court finds that plaintiffs mortgage is prior in right to [the defendant’s] interest.” The defendant filed an appeal from that ruling to this court, which this court dismissed on May 14, 2013. In the notice of dismissal, this court remanded the matter to the trial court “to enter judgment of strict foreclosure in accordance with the determination of priorities.” On May 17, 2013, the trial court rendered a judgment of strict foreclosure pursuant to this court’s order, and this appeal followed.

I

The defendant’s first claim is that the court improperly relied solely on the two deeds submitted as evidence at the remand hearing and disregarded agreements, including the agreement between him and Dale Construction that had been recorded in the land records. The defendant argues that “a title search undertaken by Attorney Babbitz ... or his designee, clearly showed that the agreements were part of the chain of title and therefore put the plaintiff on notice of the defendant’s interest in the property.” He claims that the court’s determination of priorities could not be undertaken without giving “proper weight” to those agreements. We conclude that the defendant’s argument fails because the trial court followed the explicit remand order of this court.

“Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . Compliance means that the direction is not deviated from. ... It is the duty of the trial court on remand to comply strictly with the mandate of [this] court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that [this] court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.” (Internal quotation marks omitted.) State v. Flanagan, 147 Conn. App. 262, 282-83, 82 A.3d 1191 (2013), quoting Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 341, 16 A.3d 601 (2011).

This court reversed the previous judgment of the trial court, which held that the defendant’s interest in the subject property was prior in right to the plaintiffs mortgage and ordered strict foreclosure in accordance with that determination. This court remanded the case to the trial court “for further proceedings to determine the order of priorities in accordance with this opinion.” Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 136 Conn. App. 617. That opinion clearly focused on the deed from the defendant to Alexandria Estates and, specifically, whether that deed made the conveyance subject to the defendant’s claimed interest in the agreement between him and Dale Construction. As this court stated: “Key to making any decision in this case is a review of the deed of conveyance from [the defendant] to Alexandria Estates. If this deed made the conveyance subject to the Neubig-Dale Construction agreement, it bears on the issue as to whether the Neu-big agreement is prior to the plaintiffs mortgage. This deed is not in the record before us. We are unable to review this matter without it, and the court could not properly determine priorities without this document.” Id., 616-17.

The trial court in this case properly “examine[d] the mandate and the opinion” of this court; (internal quotation marks omitted) State v. Flanagan, supra, 147 Conn. App. 283; and concluded that it was restricted to reviewing the deed of conveyance from the defendant to Alexandria Estates in determining the priorities of the claimed interests in the subject property. We therefore reject the defendant’s claim because he essentially requests that we find the trial court committed reversible error by following the plain language of this court’s remand order.

II

The defendant’s next claim is that the court “failed to allow” the plaintiffs counsel to testify with respect to the title search he had prepared in connection with the foreclosure action. Discussion of this claim is rendered unnecessary by our resolution of the defendant’s first claim, and thus, we do not address it.

III

The defendant’s final claim is that the trial court “followed an inappropriate directive from the Appellate Court in solely taking into account the [ w] arranty [d] eed and ignoring the [agreements, regardless of their inclusion in the deed.” The defendant argues that the trial court should not have followed the “incorrect directive” from this court and, instead, should have considered the additional evidence that he wanted to present to show that the plaintiff had knowledge of the defendant’s interest in the subject property.

In the present case, our review is governed by this court’s previous ruling in Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 136 Conn. App. 511. “[T]his court follows the well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory [on] the parties to the action and [on] the trial court. . . . The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding . . . .” (Internal quotation marks omitted.) Mariculture Products Ltd. v. Certain Underwriters at Lloyd’s of London, 142 Conn. App. 484, 493, 70 A.3d 92, cert. denied, 309 Conn. 911, 69 A.3d 307 (2013). We are bound by this court’s precedent and conclude that the trial court properly followed the remand directive in Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 611.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed its foreclosure complaint against several defendants. Subsequently, the plaintiff filed a motion to join John Neubig as a party defendant, which was granted by the court. Because Neubig is the only defendant involved in this appeal, we refer to him as the defendant in this opinion.

       The plaintiff claimed that the agreement was outside the chain of title because Dale Construction never owned the subject property. Additionally, the plaintiff claimed that the agreement was personal and did not run with the land. Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 136 Conn. App. 515.

       This court’s remand order was preceded by the following statement: “Key to making any decision in this case is a review of the deed of conveyance from [the defendant] to Alexandria Estates. If this deed made the conveyance subject to the Neubig-Dale Construction agreement, it bears on the issue as to whether the Neubig agreement is prior to the plaintiffs mortgage. This deed is not in the record before us. We are unable to review this matter without it, and the court could not properly determine priorities without this document.” (Footnote omitted.) Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 136 Conn. App. 516-17.

       The transcript of the remand hearing consists of seven pages.

       The original deed had been recorded without an attached legal description of the subject property. A correcting deed subsequently was recorded with the attached legal description of the subject property.

       We note that the defendant did not request that copies of any agreements or other deeds in the chain of title be marked as exhibits for identification during the remand hearing.

       We also note that the record is inadequate to review the defendant’s second claim. The record is silent as to what Babbitz would have testified to, if permitted, regarding the alleged “defects [that] were found” in the title search. The defendant made no offer of proof regarding Babbitz’ testimony. “The absence of an offer of proof may create a gap in the record that would invite inappropriate speculation on appeal about the possible substance of the excluded testimony.” (Internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 583, 903 A.2d 201 (2006).

       The defendant did not file a motion for reconsideration en banc with this court, nor did he file a petition for certification to appeal with our Supreme Court.


author: GRUENDEL, J.

text:
    NESTOR QUIROGA v. COMMISSIONER OF CORRECTION
    (AC 34415)
    DiPentima, C. J., and Gruendel and Beach, Js.

      Argued January 9
    officially released April 1, 2014

      Natalie Olmstead, assigned counsel, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Richard K. Greenalch, Jr., special deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Nestor Quiroga, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. That petition was predicated on the alleged ineffective assistance of his trial counsel regarding the immigration consequences of a guilty plea. Following an expedited trial, the habeas court concluded that the petitioner had not established any deficient performance on the part of his trial counsel. The petitioner now challenges the propriety of that determination. We conclude that the present appeal is moot and, accordingly, dismiss the appeal.

The petitioner is a citizen of Uruguay who was admitted as a lawful permanent resident of the United States in 1989. On March 11, 2008, the petitioner appeared before the trial court to enter into a plea agreement concerning two separate criminal matters. At that time, he was represented by Attorney Amelia Ruggeri, a public defender. The petitioner first pleaded guilty, in docket number CR-07-0161034, to one count of possession of narcotics in violation of General Statutes § 2 la-279 (a). The petitioner then entered a plea of nolo con-tendere, in docket number CR-07-0161093, to one count of larceny in the first degree in violation of General Statutes § 53a-122. During its canvass of the petitioner, the court inquired, inter alia, as to whether the petitioner understood “that if you are not a [United States] citizen, your pleas may result in your deportation, exclusion from admission to the United States, or denial of naturalization,” and whether he was satisfied with Ruggeri’s assistance. The petitioner responded in the affirmative to both queries. The court then found the pleas to be knowingly and voluntarily made with the assistance of competent counsel, and it sentenced the petitioner to concurrent terms of two years incarceration, execution suspended, with three years of probation.

Less than two years later, the petitioner was arrested for, and he thereafter admitted to, violating the terms of his probation due to his November 2, 2010 arrest for possession of narcotics in violation of § 21a-279 (a). As a result of that violation of probation, the trial court sentenced him to one year of imprisonment. While incarcerated, the petitioner received a notice to appear at a removal proceeding from the United States Department of Homeland Security. That March 1, 2011 notice set forth three distinct grounds for removal. First, it charged the petitioner with violating “[s]ection 237 (a) (2) (B) (i) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . Second, the notice charged the petitioner with violating “[s]ection 237 (a) (2) (A) (iii) of the Immigration and Nationality Act ... as amended, in that, at any time after admission, you have been convicted of an aggravated felony . . . relating to a theft offense . . . or burglary offense for which the term of imprisonment at least 1 year was imposed.” Third, the notice charged the petitioner with violating “[s]ection 237 (a) (2) (A) (ii) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct.”

Approximately one month later, the petitioner on April 4, 2011, filed a pro se petition for a writ of habeas corpus; an amended petition was filed by the petitioner’s habeas counsel, Damon A. R. Kirschbaum on January 3, 2012. The amended petition alleged that Ruggeri’s representation on the larceny plea was ineffective in that she failed to (1) “adequately research the legal issue of the petitioner’s immigration status and the risk of deportation/removal”; (2) “accurately advise the petitioner about the risk of deportation/removal”; and (3) “make the petitioner’s immigration status and the risk of deportation/removal part of the plea bargaining process.” The matter was heard on an expedited basis on February 15, 2012, because the petitioner at that time was “in the custody of federal immigration authorities and subject to deportation any day.” Following a trial, the court found “that the petitioner has failed to establish his burden to prove that the petitioner’s trial counsel’s conduct was deficient and therefore, denies the petition.” The petitioner then filed a motion to reargue on February 21, 2012. The court granted the motion but denied the relief requested. On February 29, 2012, the court granted certification to appeal from the judgment denying the habeas corpus petition.

It is undisputed that, during the pendency of the petitioner’s habeas proceeding before the habeas court, the United States Immigration Court issued an oral decision in which it found all three grounds for removal proven. In particular, the immigration judge first found that “the aggravated felony larceny ground has been established by clear and convincing evidence.” The immigration judge then found that the petitioner “has also been convicted twice of either possession of narcotics or attempt to commit the possession of narcotics. Under the Gousse [v. Ashcroft, 339 F.3d 91 (2d Cir. 2003)] decision of the [United States Court of Appeals for the] Second Circuit, the court finds that removability has been established by clear and convincing evidence.” Accordingly, the immigration judge ordered that the petitioner “be removed to Uruguay. ” The petitioner filed an appeal from that decision, which the Board of Immigration Appeals dismissed on November 29, 2011.

The petitioner commenced this appeal from the judgment of the habeas court on March 14, 2012. It is undisputed that the petitioner thereafter was permanently removed to Uruguay in April, 2012. In light of that development, the respondent, the Commissioner of Correction, argues, as a threshold matter, that the appeal is moot pursuant to State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006). We agree.

Like the present case, Aquino involved a litigant who was deported during the pendency of an appeal before this court. Id., 297. Our Supreme Court held that “in the absence of any evidence that the defendant’s guilty plea was the sole reason for his deportation, the defendant’s appeal must be dismissed as moot. The defendant did not produce any evidence at the hearing on his motion to withdraw his guilty plea—indeed, he did not even claim—that he would be deported solely as the result of his guilty plea. While this appeal was pending, the defendant was deported. There is no evidence in the record as to the reason for his deportation. If it was not the result of his guilty plea alone, then this court can grant no practical relief and any decision rendered by this court would be purely advisory. . . . We conclude, therefore, that the appeal must be dismissed on the ground that the defendant has failed to establish that his claim is not moot.” (Citations omitted; footnotes omitted.) Id., 298-99.

Aquino is dispositive of the present appeal. There is no evidence in the record before us that the petitioner’s guilty plea to larceny in the first degree was the sole reason for his deportation. To the contrary, the immigration judge specifically found that removability on the ground of the petitioner’s possession of narcotics convictions had “been established by clear and convincing evidence.”

The petitioner nevertheless maintains that the larceny conviction “was the primary reason for the deportation” and that, absent that conviction, he would have been eligible for a possible cancellation of removal pursuant to 8 U.S.C. § 1229b. Attorney Anthony Collins, who represented the petitioner during his violation of probation proceeding, offered his opinion during testimony at the habeas trial that, absent the larceny conviction, the petitioner had a very good chance of obtaining such discretionary relief. It nevertheless remains that Aquino requires proof that the larceny plea was the exclusive basis of the petitioner’s deportation, rather than a primary or likely one.

Even if the immigration court had predicated its deportation order on the larceny conviction exclusively, the petitioner still could not prevail. It is axiomatic that “the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.” (Internal quotation marks omitted.) Burbank v. Board of Education, 299 Conn. 833, 839, 11 A.3d 658 (2011); see also State v. Milner, 309 Conn. 744, 751, 72 A.3d 1068 (2013) (“courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law” [internal quotation marks omitted]).

In seeking expedited review from the habeas court, the petitioner argued that “he could be deported any day and once deported he will no longer be able to seek relief.” During the habeas trial, the petitioner corroborated that allegation with the testimony of Collins. Collins informed the court that once deported, the petitioner could not return to the United States under current law:

“[Collins]: ... If I just might say, I mean, if [the petitioner] goes back to Uruguay, he will never be able to come back to the United States.
“[The Petitioner’s Counsel]: What if he gets deported tomorrow and habeas relief happens in three weeks?
“[Collins]: I don’t think he’d be able to come back.
“[The Petitioner’s Counsel]: What’s significant about the fact that he gets removed?
“ [Collins]: Because it’s a final order of removal and he is—once he leaves the United States, he is permanently inadmissible because of the narcotics convictions.
“The Court: Say that again?
“ [Collins]: Once he is removed from the United States, under current law he is permanently inadmissible to the United States because of the narcotics convictions.” In its memorandum of decision, the habeas court specifically found that “[o]nce deported, and due to the nature of his offense, [the petitioner] will not be allowed to return to this country under federal law.”

On appeal, the petitioner does not dispute the fact that he is barred from reentering the United States, which normally would render his appeal moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007) (“[b]ecause the defendant has been deported . . . and is legally unable, without permission of the Attorney General, to reenter the United States to be present for a resentencing proceeding . . . there is no relief we are able to grant him and his appeal is moot”), cert. denied, 552 U.S. 1179, 128 S. Ct. 1216, 170 L. Ed. 2d 58 (2008). Instead, he argues that the collateral consequences exception to the mootness doctrine applies. See, e.g., State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002) (“a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant rehef’). Specifically, the petitioner argues that “[without the sole aggravated felony on [his] record, he may at some point be able to apply to come back to the United States” because “[federal immigration laws are constantly changing; therefore, the current effect of a conviction not related to this case and not the primary cause of deportation should not be considered when determining whether this court has subject matter jurisdiction.”

As our Supreme Court has explained, “for a litigant to invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. . . . The reviewing court therefore determines, based upon the particular situation, whether, the prejudicial collateral consequences are reasonably possible.” State v. McElveen, supra, 261 Conn. 208. “[T]his standard requires the [litigant] to demonstrate more than an abstract, purely speculative injury, but does not require the [litigant] to prove that it is more probable than not that the prejudicial consequences will occur.” Williams v. Ragaglia, 261 Conn. 219, 227, 802 A.2d 778 (2002). We conclude that the possibility that Congress may, at some point in the future, amend federal immigration law so as to permit the petitioner’s reentry into the country despite his narcotics convictions is pure conjecture. As such, the petitioner has failed to establish the existence of a collateral injury from which we can grant relief.

The appeal is dismissed.

In this opinion the other judges concurred.

       The amended petition contains no mention of, or challenge to, the petitioner’s conviction of possession of narcotics. Rather, it pertains exclusively to “the judgment [of conviction] in State v. Nestor Quiroga, CR-07-0161093” for larceny in the first degree.

       As the habeas court noted in its memorandum of decision, “[b]ecause the petitioner was subject to deportation at any time, the court expedited its decision in this case.”

       Notice of the court’s fourteen page memorandum of decision issued on February 17, 2012.

       A copy of the immigration court decision was admitted into evidence at the habeas trial as the petitioner’s exhibit 16.

       As the United States Supreme Court has noted, 8 U.S.C. § 1229b authorizes “a discretionary cancellation of removal,” under which “the Attorney General may cancel an order of removal or an order of inadmissibility so long as, inter alia, the noncitizen has not been convicted of a[n] aggravated felony.” (Internal quotation marks omitted.) Carachuri-Rosendo v. Holder, 560 U.S. 563, 571, 130 S. Ct. 2577, 177 L. Ed. 2d 68 (2010).