Posts tagged with "connecticut"

Court Holds That Police Photographic Array of Possible Shooting Suspects Was Not Unnecessarily Suggestive

Written by Lindsay E. Raber, Esq.

A criminal defendant convicted of various gun crimes in relation to a shooting claimed on appeal that a photographic array (array) presented by police to the victim was unnecessarily suggestive and his identification (ID) was not reliable, thus the trial court erred in denying his motion to exclude it from evidence.

The Case

After the shooting, officers arranged an array “comprised of eight photographs of white males who were similar in appearance to the defendant.” They presented it to the victim in the hospital and asked whether he recognized anyone. An officer told the victim that “there could be someone in there that you might recognize, and there may not be.” Upon viewing the array, the victim immediately pointed to the defendant’s photograph and began to shake and cry. He stated he was “100 percent certain” that the defendant was the man who shot him.

Thereafter, the defendant filed a motion to suppress the ID, which the court denied. The court reasoned that “the photo array procedure was proper both in its substantive quality as well as the way it was presented to the witness. … [T]here is nothing in the record to establish any suggestiveness.”

On appeal, the defendant argued that the procedure was unnecessarily suggestive. Officers did not tell the victim that the defendant’s picture may not be in the array, and did not have any physical description on which to compile the photographs. In addition, he claimed that the ID was unreliable because the incident was over quickly, the victim’s intoxication impacted his ability to see clearly, and the victim had morphine in his system at the time of the ID.

The Defendant’s ID Reliability

In a case such as this, a court must determine whether a chosen ID procedure was “unnecessarily suggestive.” A procedure will not be invalidated “unless the police expressly indicate that a suspect is included in the array.” If a court finds this has occurred, it must then establish whether the ID was nonetheless reliable based on the totality of the circumstances. A defendant must prove both determinations by the court were incorrect to succeed on his claim. If the reviewing court finds that the procedures were not unnecessarily suggestive, it will not inquire as to the ID reliability.

In this case, the Appellate Court concluded that the ID was not unnecessarily suggestive. It found the officer’s statement “serves a purpose similar to that of an instruction that the assailant may not be in the array.” Such an instruction, though approved by the State Supreme Court, is not required. In addition, police did not indicate expressly that the defendant was included, only that “there could be someone in there that you might recognize, and there may not be.” Therefore, the array was not unnecessarily suggestive, and because the defendant failed to prove this determination was incorrect, the Court declined to address his ID reliability argument.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Court Upholds Gun Crime Convictions Where Circumstantial Evidence Established That Missing Weapon Was a Pistol

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut found that despite the absence in the record of a weapon used in a shooting, the State presented sufficient circumstantial evidence that it was a pistol. As such, the defendant’s gun crime convictions including criminal possession and use of a pistol were supported by the evidence.

The Case

This case arose from an incident that occurred on May 1, 2004. The victim drank alcohol profusely that evening, first at a party and then at a woman’s house. When he became belligerent and obnoxious, the woman called the defendant, asking him to drive the victim home. The woman became upset with the victim’s behavior and asked him to leave, which he did after yelling at and threatening her.

The defendant called and the woman relayed the most recent events. As the victim was walking home, he noticed a van following him, so he hid in some bushes. As he proceeded once more, he saw the van stopped in front of him. The driver asked if the victim knew the woman, and after the victim said yes he was shot in the stomach. Police soon arrived and transported the victim to the hospital.

During the investigation, the victim told police that the man who shot him drove a gray customized van and used what he thought at first was a cap gun. After his name came up when they spoke with the woman, officers drove by the defendant’s house and observed the vehicle described by the victim. A photographic array was presented to the victim, who chose the defendant’s picture. Officers obtained and executed a search warrant of the defendant’s house, where they seized numerous weapons, magazines and cartridges, and a small amount of marijuana.

The Charges

The defendant was charged with and convicted of assault in the first degree, three counts of criminal possession of a pistol, criminal use of a firearm, and possession of marijuana. On appeal, he argued that the State presented insufficient evidence that the firearm used was a pistol (having a barrel length of less than twelve inches) and thus failed to prove an essential element of the crimes charged. He noted that the weapon used in the shooting was never recovered, and the victim couldn’t describe the weapon in great detail.

The Appellate Court disagreed, noting there was more than enough evidence upon which a jury could reasonably infer the weapon was a pistol. The victim testified that he believed the defendant pointed a cap gun at him; thus, “it is unlikely that anyone would describe as a ‘cap gun’ a firearm with a barrel length longer than one foot.”

In addition, the shell casings at the scene matched ammunition found at the defendant’s house and could be fired from a weapon the defendant once owned. Therefore, the Court concluded that a jury could reasonably conclude that “the missing… pistol was the ‘cap gun’ the victim described as having been used by the defendant in this shooting.” Therefore, the defendant’s insufficiency of the evidence claim failed.

When faced with a charge of criminal use or possession of a firearm or other gun-related offenses, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Arson Convict Loses His Appeal: Evidence Pointed to Intent to Destroy Building in Suicide Attempt

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut declined to reverse a defendant’s arson convictions, finding sufficient evidence to establish the essential elements of the crime.

Case Background

This case arose from an incident that occurred on October 13, 2006. Police responded to the multi-resident apartment building where the defendant lived, following a report that the defendant was threatening to commit suicide. After they arrived, another resident was seen leaving the building because she was “nervous” about the defendant’s conduct. Officers were unsuccessful in communicating with the defendant, who refused to speak with them.

Smoke soon appeared in the building, and though the defendant climbed onto the fire escape, he reentered the building when officers asked him to come down. The fire intensified but responders could not enter the building because they feared for their safety in light of the defendant’s behavior. The defendant fell from a third-story window and was apprehended with effort, and firefighters promptly attempted to suppress the fire.

However, a portion of the roof collapsed and they had to exit the building. The fire was eventually put out but nonetheless caused severe structural damage. The fire marshal did not find an accidental cause for the fire and placed its origin in the defendant’s apartment, but was not definitive on the cause.

Intent Inferred

The defendant was charged with and convicted of two counts of arson in the first degree (under different subsections to address risk of injury to other occupants and the firefighters) and interfering with an officer. On appeal, the defendant argued that the State provided insufficient evidence that he “intentionally started the fire,… specifically intended to destroy or damage the building and… had reason to believe that the building was or may have been occupied or inhabited at the time the fire started.”

Intent is often inferred from circumstantial evidence where direct evidence is lacking. In arson cases, it is permissible to use the lack of evidence that the fire was caused accidentally, in light of other evidence bearing on intent, to infer that the fire was instead intentionally started.

In this case, the Appellate Court cited numerous pieces of circumstantial evidence supporting the jury’s findings: the origin of the fire, the fire marshal’s conclusions, the defendant’s destructive emotional instability, and the fact that no one else left the building after the fire began other than the defendant. Therefore, a jury could reasonably infer that the defendant intended to start the fire.

Court Rejects Defendant’s Claims

The defendant next argued that his conduct “indicated recklessness or indifference to the damage [the fire] would cause, not specific intent to damage or destroy the building.” However, the Appellate Court was not persuaded, arguing that even if suicide was the primary goal, the jury could reasonably infer that “he intended to damage the building as a means to that goal.” Therefore, as with the previous argument posed by the defendant, this one equally failed.

Finally, the defendant claimed he had no reason to believe anyone else was in the building at the time he started the fire. However, the evidence worked against him: another resident left the building shortly before it was started. At trial, this individual testified that she typically stays home during the daytime. In addition, another resident’s vehicle was located on the scene. Therefore, a jury could reasonably have inferred that “the defendant had reason to believe that one or more tenants may have been in the building during the incident.” Therefore, the Appellate Court affirmed the judgment.

When faced with a charge of arson, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Definition of “Public Housing Project” Adequately Defined for Purposes of Drug Distribution Statute

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut rejected a defendant’s attacks on the statutory definition of “public housing project” for purposes of State narcotics distribution statutes.

Case Background

This case arose from an incident that occurred on September 13, 2007. Police officers went to the defendant’s residence to execute a valid search and seizure warrant related to narcotics activity. When officers identified themselves, the defendant ran inside and locked the door. Once the officers gained entry using a battering ram, they heard a toilet flush and saw the defendant leaving the bathroom. The defendant refused to comply with orders and resisted officer attempts to place him under arrest. Officers discovered two rocks of crack cocaine and assorted pills, digital scales, plastic baggies used in the packaging of drugs, and in excess of $1,400 cash.

The defendant was charged with and convicted of possession of cocaine, possession of narcotics with intent to sell within 1500 feet of a housing project, and interfering with an officer. On appeal, he claimed that the State did not present sufficient evidence establishing nearby residential housing as a public housing project.

Defendant Contests Classification as a “Public Housing Project”

Under Connecticut General Statutes § 21a-278a(b), a person is prohibited from transporting or possessing with the intent to sell or dispense controlled substances within fifteen-hundred feet of a designated public housing project. Pursuant to this statute, public housing project means “dwelling accommodations operated as a state or federally subsidized multi-family housing project by a housing authority, nonprofit corporation or municipal developer.”

At trial, one officer testified that the residential housing was “a federally subsidized, elderly/disabled housing complex” that was run by the city’s housing authority. Another officer explained that the neighborhood was “an elderly apartment complex owned and operated by the [city’s] Housing Authority.” In stark contrast, nothing on the record suggested that the property in question was “anything other than a public housing project.” Therefore, the defendant’s claim failed.

Defendant Claims Unconstitutional Vagueness

The defendant further contested that the statute’s definition of “public housing project” was unconstitutionally vague. To prevail on a void for vagueness claim, the defendant has to show, beyond a reasonable doubt, that “[he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement.” A defendant need only prove one or the other, not both.

The Appellate Court disagreed with this challenge, stating that the statutory definition “by its plain terms, afforded the defendant notice that the statute applied to public housing projects where elderly or disabled people reside.” Particularly telling, it pointed out that the statute doesn’t require the prosecution to show that the defendant knew he was within fifteen-hundred feet at the time of the narcotics transaction. Therefore, the defendant failed to prove that a constitutional violation had taken place.

When faced with a charge for possession or distribution of controlled substances, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-211-3100 or at JMaya@Mayalaw.com.

Appellate Court Finds Defendant’s Convictions Proper: Evidence Was Sufficient, and Guilty Verdicts Were Not Legally Inconsistent

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence and legally inconsistent guilty verdicts claims, upholding the defendant’s convictions.

The Case

This case arose from an incident that occurred on May 20, 2008. The defendant and his friends confronted members of a rival gang, including the victim, who struck the defendant in the face as the two groups met. Each separated and fought others when the defendant “pulled a handgun from his waist and fired five shots into the crowd of participants in the fight,” one which struck the victim. The defendant fired a sixth round as he ran for his vehicle.

The defendant was subsequently arrested and charged with assault in the first degree, reckless endangerment in the first degree, and carrying a pistol without a permit. The gun used was never introduced into evidence, but the State provided forensic, testimonial, and demonstrative evidence that the gun used by the defendant had a barrel that did not exceed twelve inches in length. At the close of evidence, the trial court issued a jury instruction that discussed the essential elements of each crime. The jury returned a guilty verdict on all counts.

On appeal, the defendant first argued that a jury instruction allowed “legally inconsistent guilty verdicts” on the first two charges. He argued that each contained a mutually exclusive mental state – intentionality and recklessness – thus it would be improper to conclude that he acted “intentionally and recklessly with regard to the same act and the same result.” When a court reviews a claim of legal inconsistency, it must determine whether “there is a rational theory by which the jury could have found the defendant guilty of both crimes.” As the Appellate Court highlighted, “It is not inconsistent… to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.”

The Court’s Decision

In this case, the Court agreed that the convictions were not legally inconsistent, because the trial court never instructed the jury that the crimes were committed by the same physical act. It explained, “It seems evident that one who deliberately shoots at another person acts intentionally, while one who shoots into a crowd acts recklessly,” a position the defendant did not contest. Thus, the Court determined that it was reasonable for the jury to conclude that the defendant intended to cause injury to the victim, while also being reckless with respect to firing shots into a gathered crowd. Therefore, this aspect of the defendant’s appeal failed.

The defendant also argued that there was insufficient evidence to convict him of carrying a pistol without a permit. He claimed that the State did not prove that the handgun he fired met the statutory definition of a pistol, which requires a barrel length of less than twelve inches. The Appellate Court readily disagreed with the defendant: based on the forensic, testimonial, and demonstrative evidence supplied to the jury, it could reasonably conclude that the gun’s barrel length was less than twelve inches. “Direct numerical evidence of barrel length is not required to obtain a conviction [for carrying a pistol without a permit].” Therefore, the Court affirmed the judgment.

When faced with a charge of carrying a pistol without a permit or other gun offenses, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Connecticut Supreme Court affirms order of Accounting for attorney-in-fact appointed under Durable Power of Attorney

In re Bachand, 306 Conn. 37 (2012)   

Lisa Charette, the plaintiff and attorney-in-fact for Mary E. Bachand, appealed from a Superior Court judgment upholding the decision of the Probate Court for the district of West Hartford.  The decision required the plaintiff to provide an accounting of her actions as attorney-in-fact for Ms. Bachand who executed a durable power of attorney.  Ms. Bachand had progressive Alzheimer’s disease and was relocated to a long-term care facility in West Hartford, CT.  The Superior Court ruled that the Probate Court had subject matter jurisdiction to order an accounting in accordance with Conn. Gen. Stat. § 45a-175 (b) because Ms. Bachand resided within the district of West Hartford.

On appeal, the plaintiff claimed the Superior Court improperly ruled that the Probate Court had subject matter jurisdiction to order the accounting under the circumstances and erroneously found that the defendant, Cheryl Miller-Gray, had standing to make an application for an accounting.

The Supreme Court held that Ms. Bachand’s lack of intent to reside in West Hartford was not relevant to the Probate Court’s jurisdiction. Under Conn. Gen. Stat. § 45a-175 (b), the term “resides” means the place where a person actually lives no matter whether they have the intention to remain there.  Further, the defendant had standing to proceed with an application for an accounting because she was the sole remaining successor attorney-in-fact pursuant to the durable power of attorney.  The defendant did not need to present evidence to establish cause for the accounting pursuant to Con. Gen. Stat. § 45a-175 (b).  Therefore, the judgment of the Superior Court was affirmed.

Although Court Misinstructed the Jury on Essential Criminal Elements, Overwhelming Evidence of Guilt Supported the Conviction on Appeal

Written by Lindsay E. Raber, Esq.

In a previous article, the defendant failed to convince the Appellate Court that the State provided insufficient evidence to convict him of numerous charges arising from a robbery incident. He further contended that the trial court misinstructed the jury regarding attempt to commit assault in the first degree, and its failure to do so constituted harmful error that deprived him of his right to fair notice of the charges against him.

The defendant was charged for attempted assault under Connecticut General Statutes § 53a-59(a)(1), which requires a showing of attempted serious physical injury by use of a deadly weapon. However, the judge instructed the jury by the language of § 53a-59(a)(5), which only requires intent to cause physical injury by means of discharging a firearm. Because of this error, the defendant argued that the court improperly gave the jury a “legally inadequate theory of liability.”

What is Considered ‘Harmless Error’?

It is harmless error for a court to give an instruction that improperly omits an essential criminal element “if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” This concept goes hand-in-hand with another principle of appellate review of jury instructions: “[T]he test of a court’s charge is… whether it fairly represents the case to the jury in such a way that injustice is not done to either party.”

The Decision

In this case, the Appellate Court found that with respect to the element describing the type of weapon, the jury was not misled. It received a written copy of the jury charge for deliberation purposes, and within this document was the definition of “deadly weapon.” In addition, the jury found the defendant guilty of robbery in the first degree, which requires that the defendant be armed with a dangerous weapon while committing the crime.

In addition, the element regarding the seriousness of the attempted injury was satisfied by the evidence. It was undisputed that the perpetrator aimed for the cashier’s midsection while firing at close range. As the Court explained, “There can be no doubt that such action ‘creates a substantial risk of death, or… serious disfigurement… impairment of health… loss or impairment of the function of any bodily organ.” The defendant never contested this evidence at trial, only his identification as the perpetrator. Therefore, the Court found that the misinstruction was, beyond a reasonable doubt, harmless error and did not mislead the jury.

When faced with a charge of larceny, burglary, robbery, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Left-Handed Defendant Presented No Scientific Evidence of Inability to Use Right Hand to Stab a Victim

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut declined to overturn a defendant’s convictions for assault and carrying a dangerous weapon, rejecting his appellate claim of physically impossible conclusions.

Case Background

This case arose from an incident that occurred on July 9, 2006. An ongoing feud existed between the defendant and the victim, which came to a head at the Puerto Rican Day Parade in Bridgeport. The two first engaged in a verbal argument, then physical blows. When the defendant was on his knees, he reached for his back right pocket and stabbed the victim in the stomach before running off. At the hospital, the victim recovered and told police that the defendant was his attacker.

The defendant was charged with assault in the first degree and carrying a dangerous weapon, among other counts. At trial, a witness verified that they saw the defendant pull a butterfly knife from his right rear pocket, and a medical expert testified that the injuries sustained were consistent with those made by someone holding a knife with his right hand.

Defendant claims “Physically Impossible Conclusions”

However, the defendant testified that he was left-handed and thus could not have inflicted the injuries. He contended that one of the State witnesses, who received a plea bargain for his testimony, had a knife as well and could have caused the injury. This individual conceded that he had an eight-inch hunting knife that he unsheathed and waved around in an attempt to break up the fight. However, the blade was at the minimum 2.25 inches wide, while the victim’s injuries were only 1.75 inches in width.

At the close of evidence, the defendant moved for a new trial, which was denied. He was then convicted by a jury and appealed, arguing once again that the conviction was improper “because it was based on physically impossible conclusions.” The defendant claimed that as a left-handed person he could not have inflicted injuries on the victim’s right side, and it was impossible for him to reach a knife from his right-rear pocket using his left hand. In addition, he stated that a butterfly knife could not have caused the injuries.

A verdict rendered by a jury is typically given great deference, for it is their province to serve as the ultimate arbiter of credibility in a criminal case. However, there are a few situations where overturning the verdict is proper because it is based on conclusions that simply are not possible:

[A] verdict should be set aside [w]here testimony is thus in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ.

Court’s Ruling

In this case, the Appellate Court found that, even assuming the jury took the defendant at his word that he was left-handed, “this does not lead to the logical conclusion that he could not have used his right hand to stab the victim.” Having predominant use of one hand does not instantly render the other one unusable, and the Court pointed out that the defendant presented no scientific evidence that he was unable to use his right hand.

In addition, the Court rejected the defendant’s argument regarding the possibility that the State witness inflicted the injury. It noted that the blade was too wide, whereas the defendant’s knife was “long enough” to cause the victim’s injuries. Because the defendant failed to provide any evidence that the jury made unreasonable findings and conclusions, this aspect of his appeal was unsuccessful. After dispensing with other matters brought forth on appeal, the defendant’s conviction was sustained.

When faced with a charge of assault or carrying a deadly weapon, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Deli Robber’s Conviction Upheld, as State Presented Sufficient Evidence to Establish Requisite Guilt

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut held that the State presented sufficient evidence to convict the defendant of charges arising from the robbery of a deli.

Case Background

This case arose from an incident that occurred on February 26, 2005. The defendant wore a half mask as he entered a deli, pulled a handgun from his jacket pocket, and pointed it at the cashier while demanding money. When the cashier went to get his wallet from his coat, located behind a glass deli case, the defendant fired at him twice. Both shots missed, and the defendant escaped with a paltry $38 cash.

One month after the robbery, police presented a photographic array to the cashier, who chose the defendant but needed a recently-taken picture to be sure. Four days later, a newspaper article with a more recent picture of the defendant appeared, linking him with another robbery. The cashier promptly called police and stated the man in the newspaper photograph (the defendant) was the same man who robbed him at the deli, then made a positive identification (ID) of the defendant in a second photographic array. However, the gun used to perpetrate this crime was never recovered.

Sufficient Evidence For Robbery, Larceny, and Attempt to Commit Assault Found

The defendant was charged with a convicted of robbery in the first degree, larceny in the sixth degree, attempt to commit assault in the first degree, and carrying a pistol without a permit. On appeal, he argued that the State presented insufficient evidence identifying him as the robber. The defendant claimed that the cashier’s ID was unreliable because the perpetrator wore a mask. He cited the cashier’s initial inability to positively identify the defendant in the first photographic array and the passage of time between the incident and the second photographic array.

The Appellate Court was not convinced, citing a plethora of trial evidence upon which the jury could reasonably conclude the defendant as the robber. The cashier saw the defendant for an extended period of time in a brightly lit area at close proximity. According to testimony, the mask itself was particularly thin, allowing the cashier to see features through it, and was only a half mask, which does not cover one’s mouth, nose, forehead, eyes, and sections of hair.

Finally, in contrast to the defendant’s assertion, the cashier was “100 percent sure that the defendant was the [perpetrator]” and made an in-court identification during trial. It was up to the jury, as the arbiter of credibility, to decide what testimony to believe. Thus, this aspect of the defendant’s insufficiency of the evidence claim failed.

Sufficient Evidence for Carrying a Pistol without a Permit Found

In Connecticut, a person may not carry a pistol or revolver outside of their home or place of business without a permit to do so. A pistol or revolver that falls under this statute must have a barrel length of less than twelve inches. Without the gun itself presented into evidence, the defendant argued that the State did not sufficiently establish the length of the barrel on the firearm used in the robbery. As such, a conviction for this charge was improper.

Police recovered two spent .45 caliber shell casings and two spent bullets, the latter located behind the deli case. At trial, State experts testified that only a handful of companies create the weapons that can fire this ammunition, and “none… manufactured firearms with a barrel length of more than twelve inches capable of discharging the kind of spent casings and bullets found at the scene of the robbery.”

In addition, the cashier provided testimony that the firearm was pulled from a jacket pocket and held with just one hand, facts from which inferences are permitted that would suggest the barrel is only twelve inches or less in length. Therefore, the Appellate Court found that the jury could reasonably infer that all elements of the carrying without a permit charge were supported by sufficient evidence.

When faced with a charge of larceny, burglary, robbery, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Jury Reasonably Inferred Defendant Intended to Sell Cocaine He Constructively Possessed (PWID)

Written by Lindsay E. Raber, Esq.

In a criminal law matter, the Appellate Court of Connecticut found that the State provided sufficient evidence to convict a defendant of possession of narcotics with intent to sell (PWID).

The Case

At 2am on October 19, 2004, a Norwalk police officer observed a vehicle near a business that reported problems with trespassing and the presence of narcotics transactions. After following this vehicle, the officer saw another one in the business’ parking lot, so he initiated a traffic stop of the second vehicle and radioed for assistance. The car had three occupants including the defendant, who was located behind the front-seat passenger. All appeared nervous, and the driver claimed the defendant was his uncle and they were there picking him up. When the officer went to run a check on the driver, the defendant changed his position to behind the driver’s seat.

After backup arrived, the officers placed the occupants under arrest for trespass. However, as the defendant exited the car, officers observed forty-three knotted bags and envelopes with cocaine, a small bag of marijuana, and $15 cash in plain view on the floor behind the front passenger seat. A search of the vehicle produced another bag of marijuana, a cell phone, and $640 in small denominations. No drugs or paraphernalia were found on the defendant, though after being transported to the police station, he provided a false name.

The Defendant’s Charges

The defendant was charged with PWID (cocaine), a violation of Connecticut General Statutes § 21a-227(a), as well as other crimes. At trial, State witnesses testified that the cocaine was packaged in a manner consistent with sales and the defendant was located in a known high drug activity area with no paraphernalia located on him indicating personal use. In addition, the presence of a cell phone and cash in small denominations is common in situations involving drug sales. At the close of State’s evidence, defense counsel moved for a judgment of acquittal, which was denied.

The jury returned guilty verdicts and the defendant renewed his motion, which was again denied. On appeal, he argued in part that the court improperly denied his motion for a judgment of acquittal because the State failed to provide sufficient evidence that he possessed the cocaine and that he intended to sell it.

To convict a defendant for PWID, the State must prove beyond a reasonable doubt that he “knew the character of the substance, knew of its presence and exercised dominion and control over it.” However, where the defendant does not have exclusive possession of the premises containing the drugs, the State must proceed on a theory of constructive possession, or possession without direct physical contact. Knowledge of the substance cannot be inferred without a showing of incriminating statements and other circumstances. Intent to sell, the second element, may be proven by the manner in which the narcotics are packaged, the defendant’s presence in a known drug trafficking area, and the absence of drug paraphernalia indicating personal use of the substance.

The Decision

In this case, the Appellate Court found that the jury could reasonably infer that the defendant constructively possessed the cocaine and intended to sell it. The Court specifically cited such behavior as the defendant’s movement in the car to distance himself from the narcotics, easy access to the narcotics, and his close proximity indicating he had knowledge of its narcotic character because “[i]t is by now common knowledge that cocaine is often packaged as a white powder in small plastic bags.”

This form of packaging, in conjunction with the defendant’s presence in a known drug trafficking area and the fact police found no drug paraphernalia on his person, allowed a jury to reasonably infer the defendant intended to sell the cocaine. Therefore, the defendant’s sufficiency of the evidence claim failed.

When faced with a charge for possession or distribution of controlled substances, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-211-3100 or at JMaya@Mayalaw.com.r