author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. JOHN KAMINSKI
    (AC 27627)
    McLachlan, Harper and Peters, Js.

      Argued November 29, 2007
    officially released February 26, 2008

      Arthur L. Ledford, special public defender, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroli, senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, John Kaminski, appeals from the judgments of conviction, rendered following his conditional pleas of nolo contendere pursuant to General Statutes § 54-94a, of six counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). On appeal, the defendant claims that the court improperly (1) determined that the warrant to search his apartment did not lack probable cause, (2) denied his motion to suppress all of the evidence seized under the search warrant, (3) made a determination that was beyond the scope allowed under the circumstances of the case and (4) denied his request for a Franks hearing. We affirm the judgments of the trial court.

The following facts are relevant to our resolution of the defendant’s claims on appeal. In the ruling on the defendant’s motion to suppress, the court found that “[s]ix months after completing probation for his sexual assault of a fourteen year old girl in 1993, [the defendant], a forty-nine year old man, brought another fourteen year old girl to his apartment and took photographs of her.” The defendant had agreed with the young girl’s mother that he would take photographs of the girl for her modeling career. The mother had signed a written agreement but had not yet had the signature appearing on that agreement notarized. Most importantly, the agreement contained a provision that the mother would be present at all of the photography sessions.

On February 24, 2004, the defendant picked up the girl at an address different from her mother’s address and took her to his residence. The defendant had informed the girl that they would be meeting to discuss her modeling career. After they arrived at his residence, however, he asked her to change into a man’s button-down shirt so he could take photographs of her. At the defendant’s request, the girl went into the defendant’s bedroom and selected a button-down shirt. Below her waist, the girl was wearing only thong underpants. The defendant then proceeded to take thirty photographs of the girl in a variety of poses. In its memorandum of decision on the motion to suppress, the court stated: “The [defendant] told the girl to pose any way she liked. In some of the thirty photographs taken, the girl wore only thong panties on the lower portion of her body; in one of those photographs, which was provided to the court, the girl is pictured sitting down with her knees drawn up to her chin and her crotch area exposed, covered only by the thong panties. In another photograph, the girl is pictured lying on her stomach wearing a man’s dress shirt and thong panties, the dress shirt has raised up on her back and a portion of her buttocks is exposed.

“After taking the photographs, the [defendant] sent them via his computer to an unidentified third person, advising that person [that] he would be taking more pictures on Friday, February 27, 2004, with a better camera and asking the recipient of these photographs to let him know if he wanted those photographs as well.” The defendant had asked the girl to meet him on that Friday to take more photographs. For this photography session, the defendant “asked her to wear ‘little girl type’ panties on that date because, he said, ‘the company’ liked the models to wear such panties.”

The defendant then drove the girl back to the location from which he had retrieved her, the residence of the family friends where she had been staying. After the girl informed these family friends where she had been and showed them the photographs, they became concerned and alerted the police about the defendant’s involvement with the girl.

The victim informed the police that while at the defendant’s apartment the defendant showed her a web site named “LiL’Amber.com.” The court stated: “This web site features young females (preteens and young teenagers) dressed in panties, bathing suits and half shirts.” The police could not fully access the web site, which they classified as “child erotica,” because it required a fee.

During their investigation, the police discovered that “[i]n 1999, apparently while still on probation for his sexual assault conviction, the [defendant] had used a credit card to purchase access to a web site featuring child pornography. This web site had been the subject of a seizure carried out by the Dallas, Texas, police department in the course of a nationwide investigation of child pornography and the Internet, and the [defendant’s] name was found on a listing of individuals who had purchased access to the web site.”

Also, while on probation, the defendant informed his probation officer that he was “self-employed in the janitorial and real estate maintenance business . . . .” Moreover, “he had never mentioned to his probation officer that he was intending to go into the child modeling or photography fields.”

On the basis of the defendant’s behavior with the fourteen year old girl and his other actions, the police submitted an affidavit to a Superior Court judge in support of an application for a search warrant to search the defendant’s residence, which was based on risk of injury to a child. The court stated: “In addition, the affiants, two veteran New Britain detectives, relying on their ‘training and experience,’ informed the issuing judge that, although the images appearing on the ‘Lil’Amber’ web site did not appear to be child pornography, as defined in General Statutes § 53a-193 (13), ‘persons who focus on children as sexual objects often collect these images [known as ‘child erotica’] as well as child pornography’ and often use them in their seduction of child victims. Further, the affiants averred that ‘persons involved in sending or receiving child erotica or pornography tend to retain it for long periods of time’ on their computers and in other formats, such as diskettes or CD-ROMS, that computer hardware, software and documentation are important to a criminal investigation both as storage media for information about crimes and as instrumentalities and/or evidence of the crimes, themselves, that ‘persons who focus on children as sexual objects often collect sexually explicit materials consisting of photographs, digital images, video files, audio tapes and files or other computer files, depicting children of a particular age group.’ Finally, the affiants state that to retrieve data from a computer system, it is necessary for the entire system to be seized and submitted to a computer specialist for examination and analysis in a laboratory setting.”

On the basis of this affidavit, the court issued a search and seizure warrant. The search yielded a plethora of incriminating evidence against the defendant, including photographs of the defendant engaged in sexual acts with unconscious minors, which led to the six sexual assault charges to which he later pleaded guilty. Subsequently, the defendant moved to suppress the evidence obtained on three grounds: (1) lack of probable cause, (2) lack of particularity in the description of the items seized and (3) material representations made by police in the affidavit that were either intentionally false or made with reckless disregard as to their truth or falsity.

On April 25, 2005, the court, Shortall, J., granted the motion to suppress in part concerning two items and denied the motion to suppress regarding the other items. In regard to the other items, the court concluded that the search warrant was valid and “described quite specifically computer and photographic equipment for which adequate probable cause is established in the affidavit supporting the application.” The court also drew the same conclusions for the “collections of photographs depicting children in a particular age group in nude or seminude poses, or engaging in sexual activity,” on the basis of the defendant’s previous conviction and actions taken with the young girl during and after the photography session.

Subsequently, the defendant filed a motion for articulation, and the court issued a supplemental memorandum of decision on May 12, 2005. On September 25, 2005, the defendant moved to reargue the motion to suppress, averring that he had learned information that was not available at the time the motion was filed, heard and decided. According to the defendant, this new information consisted of statements in the search warrant affidavit that the mother had not signed the model release form, when she had in fact signed it, but had failed to have the signature notarized, and that the girl was living not with the mother but at the address where the defendant met her on the day of the photography session.

On September 29, 2005, with the state in agreement, the court granted the defendant’s motion to reargue. After granting the motion to reargue, the court heard argument in which the defendant claimed that the police officers who sought the warrant to search his apartment intentionally or recklessly omitted facts from the affidavit, which were material to the finding of probable cause for risk of injury to a child. After analyzing the defendant’s claims, the court concluded: “All of [the] facts allow for the reasonable inference that this was a subterfuge devised by the [defendant] to lure this child into a situation harmful to her moral, mental and even physical welfare, and none of them is challenged by the motion to reargue. The claims relied on in the motion to reargue are either unsupported by the exhibits submitted in support of the motion or immaterial to the finding of probable cause.” Thus, the court again denied the defendant’s request for suppression of the remaining evidence and also denied his request for a Franks hearing.

On February 14, 2006, the defendant pleaded guilty to six charges of sexual assault in the first degree in violation of § 53-70 (a) (2). The matters were continued for sentencing, which occurred on April 11, 2006. The court, Clifford, J., sentenced the defendant to a total effective term of fifty years imprisonment, execution suspended after twenty-five years, twenty years of which is the mandatory minimum time, followed by twenty-five years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress all of the items that the police seized from his residence because the search warrant failed to demonstrate probable cause. Particularly, the defendant asserts that the search warrant lacked probable cause for the crime of risk of injury to or impairing the morals of a child because the police did not show probable cause that evidence of a crime would be found. He argues that the court improperly: (1) concluded that the defendant created a “situation” where the “victim would be ‘lured’ into a situation where her moral, mental and even physical welfare would be at risk,” (2) relied on case precedent as authority to find probable cause in a situation based on the suspect’s prior criminal record and (3) relied on case comparisons that are distinguishable from the present case. We disagree.

The record reflects that the police filed an application for a warrant to search the defendant’s residence, which is where the defendant took the photographs of the victim. Thomas N. Hayes and James P. Wardwell, detectives with the New Britain police department, submitted the application as well as their affidavit in support of the warrant application. The application was for: “Computer Systems . . . printers, scanners, cables, internal and external hard disk drives, CDR Disks, CD Disks; DVD Disks, Data Tapes, Diskettes, all other electronic storage media, and all data contained therein including text files, graphic image files, and electronic mail, and computer printouts—including printouts of digital photographs or e-mail. Cameras, Digital Cameras, video cameras, videotapes, audio tapes, pictures, slides, undeveloped film; collections of photographs depicting children in a particular age group in nude or seminude poses, or engaging in sexual activity; hand written notes, mail, canceled mail, phone records, address books.”

In their affidavit, Hayes and Wardwell averred, on the basis of their personal knowledge, years of training and experience, and statements given by the victim and her mother, that on February 24, 2004, the victim’s family friend telephoned one of the affiants to report that “he was concerned about the well being of a [fourteen] year old female acquaintance who he believed was having ‘dirty pictures’ taken of her by an adult male.” The girl informed the police that the defendant had “asked her if she would wear a [man’s] button down dress shirt in order to give the ‘Daddy’s Little Girl’ look for the photographs . . . .” According to the affidavit, she “posed for photos for [the defendant] wearing nothing but the man’s shirt and ‘thong’ panties.” She told police that during the photography session, the “shirt did [rise] up her back and exposed a portion of her ‘butt’ which she thought was the ‘worst’ picture taken of her by [the defendant].” She also informed the police that the defendant asked her to return for another photography session wearing “ ‘little girl type panties,’ ” that he had sent an e-mail containing the photographs to an unknown person, asking if he wanted more photographs and that he showed her a web site entitled “Lil’Amber.com,” which the affiants classified as “child erotica.”

The affiants also averred that the defendant had a criminal record for sexual assault in the second degree and risk of injury to an “ ‘incapacitated’ [m]inor who had to be lifted from her wheel chair” for the assault to be perpetrated. They revealed that the defendant had been linked to a nationwide investigation involving the distribution of child pornography over the Internet. They also averred the fact that the defendant sent the photographs of the victim over the Internet. Most importantly, on the basis of their training and experience, they claimed that the fact that the defendant showed the girl a child erotica web site was consistent with behavior of a sexual predator because “such materials are often used in the seduction of child victims by persons who focus on children as objects of their sexual desires.”

The affiants claimed that “persons involved in sending or receiving child erotica or pornography tend to retain it for long periods of time. Individuals who are interested in child erotica or pornography, prize the images obtained, traded and/or sold. In addition to their emotional value, the images are economically valuable in return for currency or similar images traded by another pomographer. Thereafter, pornographic images are rarely destroyed or deleted by the individual collector. Data that is deleted from the computer media may still remain on the media and may be recovered during a thorough forensic exam by trained personnel.”

On the basis of the allegations contained in the affidavit, the warrant was issued, and the police executed the warrant at the defendant’s residence. The police discovered several incriminating images and forms of media depicting the defendant engaging in sexual relations with unconscious minors. The defendant was then charged with sexual assault in the first degree on the basis of the evidence seized. The defendant filed a motion to suppress the evidence seized. The court granted the motion as to two items and denied the motion as to the other items seized.

The standard of review in connection with the court’s denial of a motion to suppress is well settled. As stated by our Supreme Court: “This involves a two part function: where 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 memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. . . . In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.” (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 694, 817 A.2d 76 (2003); see also State v. Foole, 85 Conn. App. 356, 360, 857 A.2d 406 (2004), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005); State v. Carcare, 75 Conn. App. 756, 764, 818 A.2d 53 (2003).

The defendant’s main contention is that his motion to suppress should have been granted as to all of the seized items because the warrant affidavit lacked probable cause. Particularly, the defendant asserts that “[pjrobable cause to search exists if: (1) there is probable cause to believe that the particular items to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” See General Statutes § 54-33a. The underlying offense was risk of injury to or impairing the morals of a child in violation of General Statutes § 53-21 (a) (1). According to the defendant, the language of § 53-21 is inapposite to the finding of probable cause in this action.

Pursuant to § 53-21, risk of injury to a child occurs when someone “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 . . . .” General Statutes § 53-21 (a). On the basis of this language and case law, the defendant contends that there was no risk of injury to a child because there were no “ ‘acts’ that involve direct touching of the victim’s person and are or are likely to be injurious to the victim’s physical health.” On the basis of the facts in the case, the court concluded that the defendant created a “situation” that was dangerous to the morals and mental and physical welfare of the child, and, therefore, his behavior was within the contemplated protections of § 53-21 (a) (1). Conversely, the defendant contends that the court’s conclusion does not comport with the language of § 53-21 (a) (1).

In opposition, the state argues that the factual allegations in the warrant affidavit and the reasonable inferences drawn therefrom support the finding of probable cause. Specifically, the state contends that there were sufficient facts in support of the particular evidence seized and that the items would be found in the place to be searched, the defendant’s residence. In support of its argument, the state emphasizes that the general purpose of § 53-21 “is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.” State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 268 Conn. 481, 490, 849 A.2d 760 (2004). This purpose includes “situation” language of the risk of injury statute, and it does not require actual injury to the child. We agree with the state’s argument and agree that there was probable cause to conduct such a search as to the items not suppressed by the court.

It is undisputed that “[pjrobable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . [I]t is axiomatic that [a] significantly lower quant[um] of proof is required to establish probable cause [rather] than guilt. . . . [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens’ . . . demands. ... In making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular' types of noncriminal acts.” (Citations omitted; internal quotation marks omitted.) State v. Batts, 281 Conn. 682, 700-701, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007).

“Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal. . . . Because this issue implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Id., 701-702. Furthermore, “[w]e view the information in the affidavit in the light most favorable to upholding the [issuing judge’s] determination of probable cause.” (Internal quotation marks omitted.) State v. Eastwood, 83 Conn. App. 452, 460-61, 850 A.2d 234 (2004).

Moreover, our Supreme Court has described the apparent legislative purpose of § 53-21 as being to criminalize “deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . .” (Citation omitted; internal quotation marks omitted.) State v. Pickering, 180 Conn. 54, 64, 428 A.2d 322 (1980). It also has concluded that “it is not necessary to have any touching of any part of the body” for a violation of § 53-21 to occur. State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Instead, “the creation of a prohibited situation is sufficient” to violate the statute. Id., 160.

Viewing the information in the affidavit in the light most favorable to upholding the court’s finding of probable cause, there was sufficient support for a finding of probable cause for the items not suppressed by the court. Probable cause existed with regard to the computer systems, cameras, video equipment, tapes, DVDs, photographs, printouts and other electronic media storage because the affidavit contained allegations that the defendant had taken photographs of a fourteen year old girl wearing a man’s button-down shirt and thong panties. He had asked her to wear “little girl type” panties for the next photography session, he e-mailed the photographs of her over the Internet and showed her child erotica. Moreover, the affiants alleged facts relating to the defendant’s prior arrest for which he was convicted of sexually assaulting a fourteen year old girl. Thus, there was probable cause that these items were related to criminal activity and would have assisted in the defendant’s conviction.

The defendant adamantly contests the court’s finding of probable cause and attacks the precedent relied on by the state that supports the court’s conclusion that there was probable cause underlying the search warrant affidavit. In State v. Zarick, 227 Conn. 207, 630 A. 2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993), the defendant entered nolo contendere pleas to several charges, including one count of sexual assault in the first degree in violation of § 53a-70. The defendant’s wife had taken film to be developed at a photography lab. Id., 212. The photography lab technician, concerned by the images, alerted the police to the defendant’s photographs, which contained images of nude and seminude children. Id. The police applied for a search warrant for risk of injury to a child on the basis of the photographs and the knowledge that the defendant had been identified in four separate incident reports by the Waterbuiy police department for taking photographs of young children from his vehicle. Id., 213. The police seized numerous items that the defendant later moved to suppress. Id., 214. Similar to this case, the defendant in Zarick argued that the warrant had been issued without probable cause. His motion was denied, and our Supreme Court affirmed the decision. Id., 229.

Similar to the photographs in Zarick, the photographs in the present case were brought to the attention of the police by a concerned adult, who viewed the images the defendant had taken. Additionally, the police, like the police in Zarick, were aware of the behavior patterns and techniques utilized by child molesters. For example, in the present case, the police, with years of training and experience in this field, informed the court that having a young child view Internet pornography or, in this case, “child erotica,” is a technique used in order to seduce children. In Zarick, the police were also aware that the defendant had been reported for photographing young children from his van, a highly suspect behavior. Similarly, the police here were aware that the defendant had a prior conviction for sexually assaulting a young girl of the same age as the alleged victim. He took photographs of the girl in the present case in a man’s button-down shirt and a pair of thong panties. The court saw at least one of the photographs in which the girl’s crotch was covered by only the thong panties she was wearing, and an affidavit from the girl that the defendant had taken a photograph of her in which a portion of her buttocks was exposed. She also testified that the defendant would not give her that photograph. Moreover, he e-mailed those photographs to an unknown person, asking if he or she wanted more and scheduled another photography session with the girl. Additionally, the police had evidence that the defendant had purchased access to a pornographic Internet site. All of this evidence taken together supports the issuing judge’s finding of probable cause.

Conversely, in his reply brief, the defendant challenges the state’s reliance on cases such as Zarick, claiming that “the state chose to focus its argument on the defendant’s previous conviction and the shocking nature of the items seized in the illegal search; obviously, the propose is to divert this court’s attention away from the merits of the case and toward its shock value.” While this point is duly noted, the law relied on by the state and the court strongly supports a finding of probable cause.

In opposition, the defendant claims that the court should have based its resolution of his claim on Krukowski v. Swords, 15 F. Sup. 2d 188 (D. Conn. 1998), rather than the cases it relied on. The defendant’s reliance on Krukowski, however, is unavailing because it is distinguishable from the present case. Krukowski involved a motion for summary judgment filed by the plaintiff, who was previously charged with a violation of § 53-21. The criminal charges against the plaintiff had been dismissed, but the state indicated that it would prosecute him if he were to engage in similar conduct again. Thus, the plaintiff brought a federal civil rights action challenging Connecticut’s risk of injury statute, on its face and in violation of the first and fourteenth amendments to the United States constitution, and seeking to enjoin future application of § 53-21 against him. Id., 194. The plaintiff was searching for suitable models to start his own modeling agency. Id., 190. A fifteen year old girl and her mother had hired him to be the girl’s agent. Id. They had executed several release forms, giving him authority to act as the girl’s agent. Most distinctively, the plaintiff and the girl’s mother entered into a written release “to conduct modeling sessions with [the girl], including specific permission ... to include seminude posing by [the girl]. Id., 191. The plaintiff, acting as her agent, was present for several photography sessions in which the girl had been photographed in revealing, seminude poses. Id., 191-92. The plaintiff, the girl’s mother and the photographer were all prosecuted under § 53-21. After the prosecution was resolved in the plaintiffs favor, the plaintiff brought the federal claim to enjoin future application of § 53-21 against him. Relying on the federal case, the defendant in the present case urges us to conclude that he is like the plaintiff in Krukowski and should not be found to have created a “situation” that violates the tenets of § 53-21. We do not agree with the defendant’s contention.

Krukowski is not only factually distinguishable from this case, it is also legally distinguishable. First, Krukowski is different in that the plaintiff there wanted to start a legitimate modeling business and hired a photographer to conduct the sessions. This photographer was present at all of the sessions. In Krukowski, the plaintiff engaged in a legitimate business as a modeling agent. Conversely, it is unclear whether the defendant in the present case wanted to create a legitimate modeling agency, and, moreover, he was the only person present with the girl during the photography session. Another factual dissimilarity between the cases is that in Krukowski, the plaintiff obtained written permission from the girl’s mother and even went to the extent to discuss seminude modeling with the mother and to obtain written permission for such poses. Conversely, although the defendant here may have obtained written permission from the mother, even though the signature was not notarized, the defendant violated the provision of the agreement providing that the girl’s mother would be present at all sessions. Thus, the defendant here was in breach of this provision, which was designed to protect the girl. The most striking difference between the two cases, however, is that the plaintiff in Krukowski did not have a prior record of sexually assaulting a girl, nor was he implicated in an Internet pornography web site investigation.

Second, these cases are distinguishable legally because in Krukowski, the plaintiff challenged the constitutionality of Connecticut’s risk of injury statute. The defendant in the present case, however, is challenging the validity of the search warrant. Thus, the defendant’s insistent reliance on Krukowski is misplaced.

We conclude that the allegations contained in the warrant application, as well as the contention that the defendant, a man previously convicted of sexual assault of a child, was engaged in conduct known to be a modus operandi of child molesters, were sufficient to allow a judge to find probable cause for the crime of risk of injury to a child. See State v. Zarick, supra, 227 Conn. 223. Thus, we reject this claim set forth by the defendant.

II

The defendant next claims that the court’s determination was beyond the scope allowed under the circumstances of the case. Particularly, the defendant contends that the warrant did not indicate that there was probable cause for risk of injury to a child. He asserts that the court had to justify probable cause on the basis of a “situation” created by the defendant and that it failed to do that. The defendant points to the cases relied on by the court, which examine the “situation” component of § 53-21, and claims that the current case “does not directly examine the situation that will cause risk of injury but takes it a step further; it regulates the situation which will ‘lure’ the child into a subsequent situation where the child may be placed at risk of injury to her morals. ” This is essentially the same argument asserted previously. Thus, because the search warrant contained sufficient probable cause for it to be issued, there is no need to address this claim.

III

The defendant next claims that the court improperly denied his request for a Franks hearing. The defendant filed a motion to reargue the motion to suppress on the basis of new evidence obtained that was not available when the motion to suppress was argued. Such new evidence included a sworn copy of the victim’s affidavit and the mother’s affidavit taken by the police, a signed copy of the model release form and an investigation into the use of a credit card purchase for access to a child pornography web site. He claimed that in light of this new information, his request for a Franks hearing should have been granted because the police officers had made “false statements or omissions that were material to the finding of probable cause” and that these statements “were intentionally or recklessly made by the affiants.” His motion to reargue was granted. After a hearing, the court denied the defendant’s request for the Franks hearing.

“In Franks v. Delaware, [438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)], the United States Supreme Court held that a defendant may challenge the truthfulness of an affidavit supporting a search warrant, provided the defendant has made a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit .... If this statement is necessary to the finding of probable cause, the [f]ourth [a]mendment requires that a hearing be held at the defendant’s request. . . . The court stated also that [t]o mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and . . . [t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Affidavits or sworn or otherwise rehable statements of witnesses should be furnished, or their absence satisfactorily explained. . . . The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental informant. . . . Whether the defendant is entitled to a hearing pursuant to Franks ... is a mixed question of law and fact that [is reviewable] on appeal.” (Citations omitted; internal quotation marks omitted.) State v. Batts, supra, 281 Conn. 695-96.

The defendant claims that he is entitled to a Franks hearing because the new evidence he has obtained supports his contention that the police made allegations in the search warrant affidavit that were intentionally false or made recklessly. First, the defendant claims that the credit card purchase involving the distribution of child pornography over the Internet was investigated by the defendant’s probation officer in 2003 and that no additional information was developed. The defendant claims that failing to mention this investigation casts serious doubt as to the truth of the statements by the police officers, that the statements were made with “reckless disregard for the truth” and that this information was “material to probable cause.”

The defendant makes a similar assertion pertaining to the mother’s affidavit, in which she informed the police that she had signed the model release form, and the police incident report. He contends that the police, in their affidavit, intentionally failed to mention that the model release was signed by the alleged victim’s mother. He argues that because the warrant did not mention the mother’s signature on the release, it implies that the photographs were taken without the mother’s consent and that this was material to a finding of probable cause. Furthermore, the defendant maintains that the warrant indicates that, on the day of the photography session, the defendant picked up and dropped off the victim at an address, which was not her mother’s address. The police incident report, however, indicates that the victim informed the police that she resides at both addresses, her mother’s and the address where she met the defendant. Thus, the defendant claims that this omission was material to a finding of probable cause because it goes to the consent of the mother, in that it “creates a belief that the defendant ‘lured’ the alleged victim into meeting him at an alternative location away from her home.”

In response, the state argues that the court properly denied the defendant’s request for a Franks hearing. Particularly, the state asserts that the defendant failed to make “a substantial preliminary showing that the warrant affiants omitted evidence . . . which was material to probable cause. He also failed to show that, even if the affiants had omitted information, the inclusion of that information would have defeated probable cause.” The court, upon rendering its decision after granting the defendant’s motion to reargue and hearing testimony, concluded that the defendant had failed to make a “substantial preliminary showing that material facts were omitted from the affidavit knowingly and intentionally or with reckless disregard for the accuracy of the affidavit.” (Internal quotation marks omitted.) The court found that there was no omission of fact because .upon reading the affidavit as submitted to the issuing judge, it was clear that the girl’s mother had given permission for the photography session. Moreover, the court also rejected the defendant’s claim that the police intentionally or recklessly omitted the fact that the girl did not live at the address where the defendant had picked her up on February 24, 2004. As the court concludes, “[i]n her statement to the police, the girl merely says that [the defendant] picked her up ‘at my friend’s house on Fairview Street.’ . . . The police report describes the Fairview Street address as a place ‘where [the girl] had been staying with a friend.’ . . . In any event, what was material was the fact that the [defendant] picked her up at a location from which her mother was absent even though he was not supposed to take any pictures without the mother present.” (Citations omitted.)

The court denied the defendant’s request for the Franks hearing, concluding that “[t]he material facts in this affidavit are that a forty-nine year old man who had been convicted of sexually assaulting a fourteen year old girl took another fourteen year old girl to his apartment, alone, and while there showed her a web site of ‘child erotica,’ took pictures of her in scanty attire and revealing intimate portions of her anatomy and sent those pictures to a person or persons in cyberspace. He did this despite the fact that the model release form, which he had given her mother to sign, specifically provided that [the mother] was to be present at all photography [sessions]. He picked up the girl at a location where her mother was not present, ostensibly to discuss her modeling career, but, when they arrived at his apartment, [he] persuaded her to let him take the pictures described [previously]. The [defendant] had never, before his involvement with this girl and her mother, evinced any interest in photography or modeling career management.” Thus, the court concluded that all of these facts allowed for the “reasonable inference that this was a subterfuge devised by the [defendant] to lure this child into a situation harmful to her moral, mental and even physical welfare, and none of them is challenged by the motion to reargue.” We agree with the court.

Accordingly, because we conclude that there was sufficient probable cause alleged in the affidavit for the search warrant as to the items not suppressed by the court and that the court properly denied the defendant’s request for a Franks hearing, we affirm the judgments of the trial court.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . ...” In the present appeal, the defendant is challenging whether there was probable cause to issue a search warrant for risk of injury to a child pursuant to General Statutes § 53-21. The evidence obtained through the search yielded aplethora of incriminating evidence against the defendant.

        Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), provides authority permitting a defendant to challenge the truthfulness of an affidavit supporting a search warrant, provided the defendant has made a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit . . . .” Id., 155-56.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       It is unclear from the photographs whether the girl was wearing a sweater under the button-down shirt, which is asserted by the defendant. Nevertheless, under the button-down shirt below her waist, the young girl was wearing only thong panties.

       This photograph was not supplied to the court; however, the girl described it to the police.

       The items were listed as items seven and twenty, which were described as one brown bag containing documents, catalogs, photographs, letters, papers and one bag of several documents, including an Internet receipt for Rohypnol tablets. The court concluded that the seizure of these items “could only have been made pursuant to those portions of the warrant which the court holds were not described with sufficient particularity to satisfy the constitution and as to which probable cause was not established in the application . . . .”

       The police investigation of the defendant occurred after the girl’s statement was taken concerning the defendant’s behavior, and, as a result of this investigation, the police discovered that the defendant’s name had been linked to an Internet pornography investigation called the “Avalanche” investigation.

       In his reply brief, the defendant contends that Zarick is distinguishable because the defendant there challenged § 53-21 on first amendment grounds. The defendant claims that because the conviction was upheld on different grounds, we cannot rely on that case or the other cases relied on by the state. Essentially, the defendant is asking us to read the beginning and the end of the opinion, skipping the analysis of the law in between. This is simply unacceptable. While Zarick may have been upheld on a different basis, our Supreme Court analyzed the probable cause issue raised in the case, and, thus, the state’s reliance on Zarick is appropriate.

       There are other cases that buttress our conclusion that the facts taken together support a finding of probable cause. See State v. Palangio, 24 Conn. App. 300, 588 A.2d 644 (upholding constitutionality of risk of injury statute in light of challenge by defendant who took photographs of children in compromising positions, telling them it was for their modeling careers), cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Manluccia, 2 Conn. App. 333, 478 A.2d 1035 (Upholding admission of certain items at defendant’s risk of injury trial), cert. denied, 194 Conn. 806, 482 A.2d 711 (1984).

       The court relied on State v. Eastwood, supra, 83 Conn. App. 462, stating that “[i]n Eastwood, the facts provided to the issuing judge recited only an arrest for alleged sexual activities with a thirteen year old boy; here, the affidavit reflects the [defendant’s] conviction for sexual assault of a girl . . . .” Furthermore, the court stated that “[g]iven the assaultive conduct of which the [defendant] had previously been convicted, the ‘situation’ he created for this fourteen year old was one in which not only her morals but also her health, physical as well as mental, were likely to be injured.”

       The plaintiff in Krukowski prevailed, and the court held that because he engaged in “non-obscene, non-pomographkr modeling sessions with a fifteen-year old model who participated] voluntarily and with the consent of a parent, and in a context devoid of any allegations of sexually explicit physical conduct by the accused,” he was entitled to injunctive relief. Krukowski v. Swords, supra, 15 F. Sup. 2d 205. Here, the girl was photographed in a man’s button-down shirt and a pair of thong panties. She may have participated with the consent of her mother, but this consent was negated when the defendant violated the provision of the agreement that mandated that the mother be present during photography sessions. Most importantly, here the defendant told the girl to wear “little girl type” panties next time and e-mailed the photographs to an unknown person.

       Interestingly, in the defendant’s reply brief, he claims that the state cannot rely on Zarick because in that case, the defendant’s conviction was upheld on a first amendment challenge to § 53-21. Ironically, in light of his argument opposing the state’s reliance on Zarick, the defendant would have us rely on Krukowski, in which the defendant raised a first and fourteenth amendment challenge to § 53-21. See footnote 11.

       The court points out that the mother knew that photographs were to be taken other daughter; however, nothing in her mother’s sworn statement to the police “establishes that she knew they were to be taken that day .... And it is the [defendant’s] photographing of the daughter on February 24, 2004, in 1he absence of her mother, that is the material fact. So, there is no factual support for the allegation that the police omitted a material fact from the affidavit.”
      Additionally, the defendant asserts that the police intentionally or recklessly omitted the fact that the mother had “fully executed” a model release form. The court concluded that while the affidavit stated that the mother “produced an unsigned ‘Model Release Form’ ” and the police incident report did state that the mother had “produced a written consent/agreement which [the defendant] had her read and sign,” the court determined that this statement was not made in reckless disregard, nor was it material. The court concluded that, “even if the affidavit had stated that the mother had produced a signed model release form, probable cause would still have existed to believe that evidence and/or the instrumentalities of a crime [were] present in the [defendant’s] apartment.”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHRISTOPHER CAROLINA
    (AC 27205)
    Flynn, C. J., and Bishop and Berdon, Js.
    Argued December 3, 2007
    officially released March 4, 2008

      Carlos E. Candal, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Karen Diebolt, deputy assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Christopher Carolina, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the fourth degree in violation of General Statutes § 53a-125, conspiracy to commit larceny in the fourth degree in violation of General Statutes §§ 53a-125 and 53a-48, and burglary in the third degree in violation of General Statutes § 53a-103. On appeal, the defendant claims that (1) the trial court improperly charged the jury on the element of unlawful entry for the burglary offense, (2) there was insufficient evidence of unlawful entry to support a conviction of burglary in the third degree, and (3) the court violated his constitutional rights and abused its discretion in limiting his cross-examination of one of the state’s witnesses. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our consideration of the defendant’s claims on appeal. On October 5, 2004, Shannon Carney was working as a shift leader at the Dunkin’ Donuts at 496 Frost Road in Waterbury. Umberto Nieves was also working there that night. According to Carney, two or three months earlier, she had met the defendant through Nieves, who had known the defendant for ten or eleven years and was friendly with him. Carney and the defendant had discussed robbing the Dunkin’ Donuts where she worked and planned to do so while she and Nieves were both working there. Nieves testified that several minutes before 9:30 p.m. on the night in question, Carney told him that a robbery was going to take place and that the robber was outside the store. Nieves stated that he thought that Carney was joking. Carney testified that approximately fifteen minutes before the burglary, she saw the defendant outside the store wearing sweatpants, a dark colored jacket and a wig, and holding a mask.

At approximately 10:30 p.m., as Nieves exited the store’s back door in order to throw out the trash, a man ran into the store, pushing him back inside and through the back door, and demanded the money in the store’s cash registers. Carney testified that the burglar was acting as if he had a gun in his pocket, but she knew that he was not actually carrying a gun. Nieves and Carney testified that they emptied the contents of the store’s cash registers into plastic bags and turned them over to the burglar, who left the store through its back door. Carney testified that she concluded that the defendant was the burglar because the burglar had a mask on and was wearing sweatpants, a dark colored jacket and a wig, just as she had seen the defendant wearing earlier. Additionally, Carney recognized the defendant’s voice when he told her to “hurry up” when emptying the cash registers. Nieves called the store manager, at home, and reported the burglary. The manager instructed Nieves to call the police and to lock up the store. Carney claimed at trial that the burglary was staged.

After the police investigated the matter, the defendant was arrested and charged with larceny in the fourth degree, conspiracy to commit larceny in the fourth degree and burglary in the third degree. The defendant was convicted of all charges and sentenced to a total effective term of four years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly charged the jury on the unlawful entry element of the burglary offense. The defendant does not contend that the court failed to instruct on that essential element of the offense, but, rather, that the court should have explained that element more thoroughly. Specifically, the defendant claims that the court should have informed the jury that an individual other than the owner of the premises could have given the defendant license to enter the store through the back door. We are unpersuaded.

At trial, Donna Polzella, the store manager, described the layout of the store as of October 5, 2004. The store’s front and inner doors led to a lobby area containing tables. The seating area was separated from a work area by a counter. At one end of the counter was a swinging door, approximately three and one-half feet high, attached to which was a sign indicating “employees only.” The work area contained a counter, cash registers, shelves holding trays of doughnuts, and coffee machines. An open passageway led to the back area of the store. The back area contained a kitchen, a manager’s office and a closet containing a water heater, buckets and brooms. From this back area of the store, there was a door that opened out into an alley and a garbage dumpster. No signs were attached to this door. Polzella testified that the back door of the store was always locked and that only store employees were authorized to pass through the counter’s swinging door and into the work and back areas of the store. Polzella further testified that store procedure specified that only daytime personnel were authorized, at the conclusion of a shift during a cleanup period, to use the back door to take garbage outside to the dumpster located behind the building. Polzella indicated that Camey was a night shift leader and was responsible for handling customer and employee concerns during her shift. Camey also testified that nonemployees were not permitted to go past the front counter into the back area of the store or to enter the store through its back door.

In its charge to the jury, the court indicated that the state could not satisfy its burden of proving the unlawful entry element of burglary in the third degree if the evidence showed that the defendant was licensed or privileged to enter the building. The court stated that the determination was dependent on whether the defendant had the “consent, either express consent or implied consent, from the owner of the Dunkin’ Donuts to enter the building at the time and in the manner of the entry.” The defendant objected to the charge on the ground that it limited the prerogative to grant consent to enter to the owner of the premises and not also to the possessor of the premises.

“We first set forth the well established standard of review for a challenge to the propriety of a jury instruction. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established mies of law. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear- comprehension of the issues presented for [its] determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instmctions, we view the instmctions as part of the whole trial. ... 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 instmctions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. . . .” (Citation omitted; internal quotation marks omitted.) Ravenswood Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App. 7, 11-12, 936 A.2d 679 (2007).

General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-100 (b) provides in relevant part: “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.”

“A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing an interest therein. . . . Generally, a license to enter premises is revocable at any time by the licensor. ... It is exercisable only within the scope of the consent given. . . . The phrase licensed or privileged, as used in General Statutes § 53a-100 (b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” (Internal quotation marks omitted.) State v. Morocho, 93 Conn. App. 205, 218, 888 A.2d 164, cert. denied, 277 Conn. 915, 895 A.2d 792 (2006).

The defendant argues that the court should have charged the jury that the possessor of the premises, not only the owner, could consent to his entry, thereby giving him license and privilege to enter. Specifically, the defendant contends that the evidence showed that his entrance through the back door was not unlawful because Carney had consented to his entry. Even if we assume arguendo that Carney, as the shift leader, had the authority to consent to the defendant’s entry through the back door, the evidence does not support the contention that she was the one who let him in the back door or that he gained entry through anyone’s consent. Indeed, there was no evidence before the jury that anybody gave the defendant permission to enter the premises. The evidence indicated that the defendant gained entry through the back door by pushing past Nieves when Nieves had opened the rear door in conjunction with taking garbage to the dumpster from the store. Although, Carney testified that she intended to let the defendant in the back door and had informed Nieves that there would be a burglary that night, there was no evidence that either Nieves or Carney gave the defendant permission to come in the back door. Accordingly, the court properly declined to give the defendant’s requested charge, as it was unsupported by the evidence.

II

The defendant next claims that there was insufficient evidence of unlawful entry to support his conviction of burglary in the third degree. We disagree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Hyde, 104 Conn. App. 574, 577-78, 935 A.2d 639 (2007), cert. denied, 285 Conn. 910, 940 A.2d 809 (2008).

At trial, the state introduced evidence that the back door was always locked, that only store employees were authorized to pass through the counter’s swinging door and into the work and back areas of the store, and that only employees were authorized to use the back door to take garbage outside to the dumpster in the back of the building. The evidence further indicated that although Carney had told Nieves that the store was going to be robbed that night, he thought it was a hoax, and that when the defendant entered the back door, he did so by pushing past Nieves while Carney was at the front of the store. There was no evidence that the defendant gained access to the store through any means employed by Carney, or that Carney had told the defendant that he could gain access through this passageway normally reserved only for employees. There also was no evidence that the defendant had been given the impression from Carney that the rear door would be opened to ease his entry into the premises. On the basis of the evidence presented, the jury reasonably could have found that the defendant’s entry was unlawful.

Ill

The defendant’s final claim is that the court violated his constitutional rights and abused its discretion in restricting his cross-examination of Gregory West. Specifically, the defendant contends that although the court properly permitted him to cross-examine West regarding a prior felony conviction, namely, conspiracy to commit robbery, it improperly prohibited him from inquiring as to the details of that robbery plan in that they closely mirrored the facts of the present case. We disagree.

West testified that on October 5, 2004, at approximately 9:30 p.m., he was seated and drinking coffee in the Frost Road Dunkin’ Donuts and was waiting for the store to close and for Carney, whom he had been dating for a couple of months, to finish work. West heard a commotion in the back area of the store and observed a man, who was dressed in a “hoodie” and wearing a hockey mask with black or brown skin showing around the edges, emerge from the store’s back area. Because the defendant was wearing a mask, West was unable to identify him.

On cross-examination, West admitted to having a prior robbery conviction. In response to the state’s objection, the court instructed the jury that it could consider only the fact of West’s prior felony conviction. The defendant objected to not being permitted to inquire as to the details of the crime for which West was previously convicted. He contended that the details of the previous conviction were relevant to West’s credibility because the offense was the same and, therefore, related to his interest in the present case.

Subsequently, prior to West’s direct examination during the defendant’s case, the defendant renewed his objection to the limited scope of his cross-examination of West in that he had learned that the prior conviction resulted from a robbery that was planned by employees and was, thus, factually identical to the case at hand. The defendant contended that this factual similarity pertained to West’s credibility. On the basis of the well established principle that larcenous acts tend to show a lack of veracity; see State v. Swain, 101 Conn. App. 253, 267, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007); the court allowed the defendant to introduce the fact that West was convicted of robbery. The court, however, did not allow the introduction of the details of that robbery.

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Mungroo, 104 Conn. App. 668, 680-81, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).

“It is well established that the trial court has discretion on the admissibility of prior convictions. . . . Where the defendant admits to prior convictions on direct examination, the customary impeachment inquiry on cross-examination is limited to the name of the crime and the date of conviction . . . .” (Internal quotation marks omitted.) State v. Vitale, 76 Conn. App. 1, 9, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003). “When prior convictions are admitted to impeach the credibility of a witness through a general inference of bad character, the facts underlying the conviction are generally inadmissible. . . . [CJross examination, in quest for the truth, provides a means for discrediting the testimony of a witness . . . and matters that may not otherwise be relevant become so for the purpose of credibility.” (Citation omitted; internal quotation marks omitted.) State v. Marino, 23 Conn. App. 392, 403, 580 A.2d 990, cert. denied, 216 Conn. 818, 580 A.2d 63 (1990). Because the restriction of cross-examination regarding the facts underlying a witness’ prior felony conviction does not rise to the level of a constitutional violation, the defendant bears the burden of demonstrating the harmfulness of an error in the failure to admit such facts. See State v. Denby, 198 Conn. 23, 32, 501 A.2d 1206 (1985), cert. denied, 475 U.S. 1097, 106 S. Ct. 1497, 89 L. Ed. 2d 898 (1986).

Our Supreme Court recently noted: “[A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [0]ur determination that the defendant was harmed by the trial court’s [evidentiary rulings] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 641-42, 930 A.2d 628 (2007).

Here, even if the exclusion of the facts underlying West’s prior conviction was improper, we conclude that it was, nevertheless, harmless. The identification of the defendant as the peipetrator, as well as the bulk of the evidence regarding the incident, came from Carney. Thus, even if evidence that West was involved in a robbery factually similar to the burglary at hand would have led the jury to question West’s credibility, a claim that we find to be tenuous, his testimony was far from essential to the state’s case. As such, we conclude that the defendant has not satisfied his burden of establishing that the restriction on his cross-examination of West substantially affected the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       In support of his claim, the defendant asserts that “a license or privilege to enter premises may derive from a transaction between the possessor and the actor . . . State v. Grant, 6 Conn. App. 24, 30, 502 A.2d 945 (1986). It is unclear, however, that Carney, as the shift leader, was the “possessor” of the premises and whether, as such, she could consent to the entiy when the purpose was to commit a crime therein. In declining to give the defendant’s requested charge, the court indicated that “possessor” refers to “legal possessors such as tenants,” and that employees are not legal possessors of the premises. Because there was no evidence, however, that Carney allowed the defendant admittance through the back door, we need not reach this issue.

       In his brief to this court, the defendant asserts that Carney “met with the defendant in the rear entrance to the store moments before his entry and instructed him how and when to enter.” The record is, however, devoid of any evidence in support of this recitation of facts.

       The defendant contends that there was insufficient evidence of unlawful entry because Carney, as the shift leader, knew that he would enter the premises through the back door to steal from the store. The defendant argues that, because Carney thereby invited him to enter the premises, his entry was lawful. Contrary to the defendant’s claim, however, Carney testified that she did not recall any of the specifics that she and the defendant had discussed in planning the theft, and there is no evidence that Carney was aware that the defendant would enter the premises through the back door.

       The defendant also claims on appeal that the restriction of his cross-examination of West violated his constitutional right to present a defense, namely, “a theory of defense which would have rightfully shifted the spotlight onto someone else other than the defendant [who] could have been involved in the conspiracy.” The defendant did not, however, indicate at trial that he was attempting to inculpate West in the burglary. We know of no support for the defendant’s attempt to pursue a new theory of defense for the first time on appeal.


author: WEST, J.

text:
    IN RE FABIAN A.

    (AC 28704)
    Bishop, Harper and West,, Js.

      Argued January 2
    officially released March 4, 2008

      James Jude Connolly, supervisory assistant public defender, for the appellant (respondent).

      Maura Murphy Osborne, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

WEST, J.

The respondent, Fabian A., appeals from the judgment of the trial court granting the motion of the petitioner, the commissioner of children and families (commissioner), to extend his delinquency commitment for an additional nine months. On appeal, the respondent claims that the court, Gleeson, J., improperly determined that his original plea was knowingly and voluntarily made. We agree with the respondent and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the respondent’s appeal. On August 25, 2005, the respondent, at the age of fifteen, pleaded guilty to charges of disorderly conduct pursuant to General Statutes § 53a-182 and violation of probation pursuant to General Statutes § 46b-120 (6) (C). The respondent was committed to the custody of the commissioner for a period not to exceed eighteen months with direct placement at the Connecticut Junior Republic.

At the time of the respondent’s plea, the court, Wollenberg, J., advised the respondent that he was able to inquire at any point during the canvass if he had a question. The court also advised the respondent’s mother, who was present at the hearing, that she, too, could interrupt the court if she had an inquiry. The court then had the prosecutor recite to the respondent the factual basis for each offense. Next, the court conducted a plea canvass to determine whether the respondent’s plea was knowing and voluntary. The court asked the respondent, inter alia, his age, what grade he was in at school, if anyone had forced him to plead guilty, if anyone had promised him anything if he pleaded guilty, whether his attorney had informed him of how a trial would work and whether he was satisfied with the representation of his attorney. After the canvass, the court found that “the pleas are knowingly and voluntarily made with the assistance of competent counsel, there is a factual basis for the pleas and the pleas are accepted.” After accepting the pleas, the court then asked, “[w]hat is the commitment here?” The probation officer answered that it was an eighteen month commitment, and the court added that the commitment was to be served at the Connecticut Junior Republic. The prosecutor then asked the court to let the respondent know about “the recommitment possibility.” The court stated, “Well, if this doesn’t work and something happens, you can be recommitted, do you understand that?” The respondent did not answer until the court informed the respondent that he needed to answer “yes” or “no.” At that point, the respondent answered: “Yes.”

The respondent’s commitment was scheduled to expire on February 28, 2007, but as a consequence of his behavior while in custody, on January 29, 2007, the commissioner filed a motion for an extension of the respondent’s commitment. Subsequently, on February 27, 2007, the respondent filed an opposition to the motion to extend his delinquency commitment. On March 22, 2007, the court held a hearing on the motion for an extension of the respondent’s commitment and rendered an oral decision, granting the motion and extending the respondent’s commitment to January 19, 2008, the date the respondent would reach the age of eighteen. Judge Gleeson found that at the time the respondent entered his guilty plea, he was advised adequately as to the possibility that his commitment could be extended. This appeal followed. Additional facts will be set forth as necessary.

As an initial matter, we must address whether we are precluded from reviewing the respondent’s claim because it is moot. The respondent’s commitment expired on January 19, 2008, and therefore the commissioner no longer has custody of him, as he no longer is a juvenile. Because there is no practical relief this court can grant the respondent, the appeal is moot. “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... It is a well-settled general rule 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. . . .

“We note that an otherwise moot question may qualify for review under the capable of repetition, yet evading review exception. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754-55, 826 A.2d 156 (2003). We conclude that the present appeal meets all three requirements for review under the “capable of repetition, yet evading review” exception to the mootness doctrine.

First, the effect of the challenged action in the present case is of a limited duration. Specifically, a court can extend a commitment order for no more than eighteen months by statute. See General Statutes § 46b-141 (a) (1). “The effect of the extension, therefore, is limited to eighteen months or less by its very nature. It is accordingly of such a nature that a substantial majority of the cases in which such an order is entered will evade review.” In re William D., 97 Conn. App. 600, 604-605, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007).

Second, we conclude that there is a reasonable likelihood that the question presented in this case will arise again in the future. The question presented in this appeal is whether the court properly determined that the respondent’s original plea was knowingly and voluntarily made when the court did not inform the respondent of his term of commitment or the possibility of recommitment, prior to accepting his plea, and did not inform him of the possibility of an extension of his commitment. This question is likely to arise again any time that a court fails to inform a juvenile respondent about crucial aspects of his plea agreement prior to pleading guilty. Furthermore, the question presented in this appeal will affect a reasonably identifiable group for whom the party can be said to act as a surrogate. It is likely to affect juvenile respondents, similar to the respondent in this case, who may be unaware of the workings of the juvenile justice system but who, because of their age and the law, may be subject to commitment extensions beyond the initial period of commitment.

Finally, the question presented in this appeal is of public importance. Whether a juvenile has been canvassed in a way that renders his plea knowing and voluntary is undoubtedly a question of constitutional magnitude. In the interest of due process and overall fairness, it is important that a juvenile be apprised sufficiently of all the aspects of his plea prior to his entering into it. Satisfaction of all three requirements of the “capable of repetition yet evading review” exception allows us to reach and review the respondent’s claim on appeal.

On appeal, the respondent’s sole claim is that Judge Gleeson improperly determined that the respondent’s original plea was knowingly and voluntarily made. Prior to examining this claim, we set forth the legal principles that guide our resolution of it. “Our cases instruct that we conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary.” State v. Groppi, 81 Conn. App. 310, 313, 840 A.2d 42, cert. denied, 268 Conn. 916, 847 A.2d 311 (2004). “A defendant entering a guilty plea waives several fundamental constitutional rights. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Citation omitted; internal quotation marks omitted.) Id., 314.

The respondent argues in his brief that Judge Gleeson improperly found that the plea was knowingly and voluntarily made without Judge Wollenberg’s inquiring of the respondent whether he was aware of the possible penalty or any extensions or modifications of the penalty. The respondent notes that it was only after the plea was accepted that the court first inquired of the probation officer as to the respondent’s sentence. Furthermore, the respondent noted that even after the court informed him of his sentence, the court still failed to make any inquiry of the respondent’s understanding of the sentence, the maximum penalty or the possibility of an extension. Finally, the respondent noted that it was only at the suggestion of the prosecutor, after the plea had been accepted, that the court informed the respondent of a “recommitment possibility.”

The respondent argues in his brief that because the court did not apprise him of the possible penalty, the possibility of an extension or the possibility of a recommitment prior to accepting his plea, he did not have all the relevant information required to make his plea knowing and voluntary. We agree with the respondent and conclude that the court improperly determined that his original plea was knowingly and voluntarily made.

Both case law and Practice Book § 30a-4 mandate what a court must address in canvassing a juvenile respondent. In In re Jason C., 255 Conn. 565, 570-71, 767 A.2d 710 (2001), our Supreme Court stated that “when accepting a plea agreement, due process requires a court to advise a juvenile of possible extensions to the delinquency commitment.” Furthermore, the respondent cites Practice Book § 30a-4, which provides in relevant part: “To assure that any plea or admission is voluntary and knowingly made, the judicial authority shall address the child or youth in age appropriate language to determine that the child or youth substantially understands ... (3) [t]he possible penalty, including any extensions or modifications . . . .”

In the present case, the court did not address the penalty the respondent would receive or the possibility of recommitment prior to accepting his plea. Furthermore, the court did not inform the respondent of the possibility of the extension of the commitment. Finally, in mentioning recommitment, the court did not ensure that the respondent substantially understood the meaning of the term. The respondent correctly states in his brief that “[t]he term ‘recommitment’ is used when a committed delinquent is returned to court on a new offense and faces the possibility of being committed for a new term that begins during his present commitment period.” In contrast, an extension of a commitment, as sought and ordered in the present case, occurs at the end of a delinquent’s term. A delinquent, therefore, can face the possibility of serving eighteen months for the original offense and another eighteen months because of poor behavior during a placement. Furthermore, a juvenile may have his or her commitment extended without committing another offense. The court did not explain to the respondent the distinction between a recommitment and an extension of a commitment.

Under both case law and our rules of practice, the court is required to address the penalty and the possibility of an extension of commitment and of a recommitment in a manner that ensures that the juvenile substantially understands the issues. “[I]n order for a plea of guilty to be constitutionally valid, it must be equally voluntary and knowing .... [I]t cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. . . . An understanding of the law in relation to the facts must include all relevant information concerning the sentence. The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty.” (Emphasis in original; internal quotation marks omitted.) In re Jason C., supra, 255 Conn. 573-74. In the present case, the respondent could not have possessed an understanding of the law in relation to the facts because the court, in canvassing him, did not include all the relevant information concerning the commitment. As a result, we conclude that the plea of the respondent was not knowingly and voluntarily made.

The judgment is reversed and the case is remanded with the direction to deny the motion to extend the commitment.

In this opinion the other judges concurred.

       The extension of the respondent’s delinquency commitment is a final judgment pursuant to General Statutes § 46b-141 (e), which provides in relevant part: “Any order of the court made under the provisions of this section shall be deemed a final order for purposes of appeal . . . .”

       The Connecticut Junior Republic is an organization that provides residential and community based care, treatment and education for troubled boys and girls and their families.

       The appeal was filed on April 9, 2007, and oral arguments were heard before this court on January 2, 2008.

       Although the parties did not raise the issue of mootness in the present appeal, we consider it sua sponte “because mootness implicates the court’s subject matter jurisdiction. It is, therefore, a threshold matter to resolve.” (Internal quotation marks omitted.) In re William D., 97 Conn. App. 600, 603, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007).

       General Statutes § 46b-141 (a) provides in relevant part: “Except as otherwise limited by subsection (i) of section 46b-140, commitment of children convicted as delinquent by the Superior Court to the Department of Children and Families shall be for (1) an indeterminate time up to amaximum of eighteen months . . . .”

       Although Groppi involves the plea of an adult, Groppi cites In re Jason C., 255 Conn. 565, 767 A.2d 710 (2001), a case involving the plea of a juvenile, for the proposition that the review of whether a plea was entered knowingly and voluntarily is plenary. State v. Groppi, supra, 81 Conn. App. 314.

       Practice Book § 30a-4 provides: “To assure that any plea or admission is voluntary and knowingly made, the judicial authority shall address the child or youth in age appropriate language to determine that the child or youth substantially understands:
      “(1) The nature of the charges;
      “(2) The factual basis of the charges;
      “(3) The possible penalty, including any extensions or modifications;
      “(4) That the plea or admission must be voluntary and not the result of force, threats, or promises, apart from the plea agreement;
      “(5) That the child or youth has (i) the right to deny responsibility or plead not guilty or to persist if that denial or plea has already been made, (ii) the right to be tried by a judicial authority, (iii) that at trial the child or youth has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”