Posts tagged with "#CriminalDefenseLawyers"

By Purposefully Driving At Officer on Foot, Defendant Took “Substantial Step” to Commit Assault

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In a criminal law matter, the Appellate Court of Connecticut affirmed a defendant’s conviction for attempt to commit assault in the first degree, following an incident where he attempted to hit an officer with his vehicle.

The Case

This case arose from an incident that occurred on March 16, 2006. A police cruiser pursued the operator of a motor vehicle into a fenced-in construction site after he sped off during a valid traffic stop. Two foot patrol officers, C and H, assisted and made their way to a closed gate on the other side of the property. With weapons drawn, the officers repeatedly yelled at the operator, later identified as the defendant, to stop.

The defendant flashed his high beams at the officers and drove his vehicle into the fence, which in turn struck C, who “flew in the air and landed in the street.” The fence did not break, and the defendant once again drove at it. H realized that if the defendant continued on this path, C, who was lying motionless in the street, would be run over. H fired four shots at the defendant’s car, which turned and drove directly toward him. H managed to get out of the way of the car, which instead made contact with H’s service weapon.

The Charges

The defendant was subsequently arrested, charged with, and convicted of assault of a peace officer, attempt to commit assault in the first degree, and attempt to commit assault of a peace officer, among other charges. On appeal, the defendant argued that there was insufficient evidence “to prove that he intended to cause serious physical injury to [H] or that he took a substantial step to commit the crime.”

To be convicted of attempt to commit assault in the first degree, the State must prove “intentional conduct constituting a substantial step toward intentionally causing the victim serious physical injury by means of a dangerous instrument.” Unless a defendant confesses, circumstantial evidence is frequently used to infer intent to commit a crime. As the Appellate Court previously explained:

Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. … [I]t is a permissible… inference that a defendant intended the natural consequences of his conduct.

The Defendant’s Argument

The defendant claimed that he simply intended to elude police, but the Court was not persuaded. “The existence of an intent to escape does not necessarily negate the existence of an intent to cause serious physical injury when making the escape.” Instead, the Court held that a jury could reasonably find that intent to injury H was established: the defendant knew of the officers’ location, because they were repeatedly yelling at him; he flashed his high beams at them; he struck C with his car; and he purposefully turned his vehicle toward H on his second attempt to escape.

In addition, the defendant argued that the State failed to prove that he took a substantial step to commit a first-degree assault. “To constitute a substantial step, the conduct must be strongly corroborative of the actor’s criminal purpose.” The defendant stated that he merely brushed H’s service weapon, which was simply not enough. The Appellate Court disagreed, writing that simply because H dodged the oncoming vehicle did not mean that there was insufficient showing the defendant intended to inflict serious physical injury. “An attempt is complete and punishable, when an act is done with intent to commit the crime… whether the purpose fails by reason of interruption… or for other extrinsic cause.”

Thus, in this case, the jury could reasonably conclude that the defendant’s actions “constituted a substantial step that strongly corroborated the defendant’s criminal purpose.” Therefore, this aspect of the defendant’s appeal failed.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of assault 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.

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

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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.

Written by Lindsay E. Raber, Esq.

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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

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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.

Written by Lindsay E. Raber, Esq.

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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.

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

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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.

Written by Lindsay E. Raber, Esq.

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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.

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

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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.

Written by Lindsay E. Raber, Esq.

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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)

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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.

Written by Lindsay E. Raber, Esq.

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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.

Defendant’s Actions Evidenced Specific Intent Required for Kidnapping Charge

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In an opinion issued in early 2012, the Appellate Court of Connecticut found the State met its burden of establishing that a kidnapping victim’s liberty was intentionally prevented by the defendant’s conduct.

The Case

This case arose from an incident that occurred on November 4, 2007. The defendant twice entered the victim’s residence in search of his girlfriend. On the second entry, he forced his way in, placed a handgun to the victim’s stomach, and threatened to kill her. The victim insisted the girlfriend was not present, but the defendant demanded she sit on the couch as he unsuccessfully searched the apartment for the girlfriend. Police subsequently located the defendant and placed him under arrest.

The defendant faced numerous charges, including kidnapping in the second degree with a firearm in violation of Connecticut General Statutes § 53a-94a(a). He was convicted on all counts and received a lengthy sentence. On appeal, he argued in part that the State did not meet their burden of establishing, beyond a reasonable doubt, that he possessed the intent to deprive the victim of her freedom and liberty.

Establishing a Second-Degree Kidnapping Conviction

To be convicted of second-degree kidnapping with a firearm, the defendant must first abduct another person, or intend to prevent that person’s liberation. This is accomplished either through the use or threatened use of physical force or intimidation, or holding the person at a place where he is not likely to be found. Once the abduction occurs, the perpetrator “uses or is armed with and threatens the use or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or firearm.”

Intent is often proven through circumstantial evidence: unless you are a mind reader, knowing what a person is thinking or intending at any point in time is nearly impossible. Thus, “intent may be inferred from the events leading up to, and immediately following, the conduct in question… the accused’s physical acts and the general surrounding circumstances.” The words used by a defendant may also serve as direct evidence of intent.

In this case, at the time the defendant ordered the victim to sit on the couch, there remained an “implicit threat” stemming from the previous threat against the victim’s life. Therefore, the Appellate Court concluded that the jury could reasonably “infer from the defendant’s conduct that he possessed the requisite specific intent to prevent the victim’s liberation.”

Written by Lindsay E. Raber, Esq.

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When faced with a charge of kidnapping or unlawful restraint, 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.

Assault Convict “A Danger to Society;” Sentence Modification Not Warranted

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In a criminal law matter, the Sentence Revision Division of the Superior Court of Connecticut (Division) declined to modify a defendant’s lengthy sentence after he was convicted of first-degree assault, as it was neither inappropriate nor disproportionate.

The Case and the Charges

In this case, the petitioner was operating a car, with a sawed off shotgun in plain view, when a marked police cruiser initiated a valid traffic stop. Two foot patrol officers were nearby and provided backup, but the petitioner sped away to a nearby, confined property. As the petitioner attempted to escape the area, he “struck one of the officers on foot with the car [causing a serious physical injury] and drove it at the other without hitting him.”

The petitioner was subsequently arrested and charged with attempted assault in the first degree, assault on a peace officer, attempted assault on a peace officer, and possession of a sawed off shotgun. He was convicted on all counts and sentenced to a total effective sentence of forty years incarceration. The petitioner sought downward modification of his sentence, arguing it was inappropriate and disproportionate: “he claim[ed] that had no intent to hurt anyone, that he was raised in a crime ridden neighborhood and that he was under the influence of drugs at the time of the incident.”

The Court’s Decision

In opposing modification, the State argued that the jury convicted the petitioner of assault in the first degree, which requires “the specific intent to do serious physical injury to the victim by use of a dangerous instrument.” It further pointed out that at the time of the incident, the petitioner was participating in a gang initiation, had multiple felony convictions as well as a limited work history, and had been involved with illegal drug activity since he was in his teens.

When the Division reviews a sentence, it is without authority to modify unless the sentence is “inappropriate or disproportionate” in light of such factors as the nature of the offense and the character of the offender.  Taking into account the State’s arguments, the Division found no merit to the petitioner’s claim, and characterized him as “a danger to society.” Therefore, it affirmed the sentence as both appropriate and proportionate.

Written by Lindsay E. Raber, Esq.

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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.

Customized Miranda Warnings Given to Sophisticated Defendant Conveyed the “Essential Message”

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In a criminal law matter, the Appellate Court of Connecticut found that a trial court properly denied a defendant’s motion to suppress evidence, because an officer’s recitation of the Miranda warnings adequately apprised him of his rights.

The Case

This case arose from an incident that occurred on September 15, 2007, in Stamford. The defendant repeatedly struck a victim in the head using an aluminum baseball bat. The victim suffered life-threatening injuries but survived. The defendant fled to North Carolina, where he was apprehended and returned to Connecticut with two Stamford police officers. During this trip, the defendant made incriminating statements he later sought to suppress.

At the suppression hearing, the officer testified that he gave the defendant the following warnings during the trip:

[H]e has the right to remain silent. Anything he says can and will be used against him in a court of law. He has the right to an attorney. If he cannot afford one, the court will appoint him one. He has the right to stop answering questions at any time. He has the right to invoke his privilege to an attorney at any time. He has the right to not answer specific questions, if he wants to pick and choose the questions he wants to answer.

The officer explained that he prefers to go “above and beyond” the Miranda requirements with added explanations. He asked the defendant whether he understood the warnings, to which the defendant replied, “I know them, I know them, I know them.” The officer testified that at this time, the defendant waived his rights and wished to speak with them.

The Miranda Warnings

The court denied the motion to suppress, noting that the defendant, who had numerous previous arrests, “is very sophisticated, very intelligent and seems to understand a great deal [about] the legal process.” It found that the defendant was “a seasoned individual who understands what Miranda rights are about.” After a jury trial, the defendant was convicted of assault in the first degree in violation of Connecticut General Statutes § 53a-59(a)(1).  On appeal, he claimed the officer’s recitation of Miranda was inadequate, thus the trial court erred in denying his motion. He did not contest how the trial court characterized him.

In the landmark ruling of Miranda v. Arizona, the U.S. Supreme Court recognized the indispensability of counsel at the time of custodial interrogation. The Miranda warnings make sure that a defendant understands his or her constitutional rights, and if police engage the defendant in questioning without reciting these rights, the defendant’s statements may be suppressed. Thus, when a reviewing court considers the adequacy of Miranda warnings, it simply asks “whether the warnings reasonably conve[y] to [a suspect] his rights as required by Miranda.”

The Court’s Ruling

In this case, the Appellate Court ruled that the officer’s warnings were adequate because they “communicated the same essential message” as required under Miranda. The Court highlighted the defendant’s familiarity with these rights, as evidenced by the trial court’s characterization and his repeated acknowledgement to the officer. “The essential purpose of Miranda warnings is to provide a criminal suspect with the informed choice either to exercise his [f]ifth and [s]ixth [a]mendment rights or to waive them.” Here, the Court stated that aim was accomplished. Therefore, the trial court did not err in denying the motion to suppress evidence.

Written by Lindsay E. Raber, Esq.

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.

Testimony Deemed Proof of Market Value of Shoplifted Goods Where Defense Counsel Failed to Object to Its Admission

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In a criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence claims regarding the value of shoplifted goods and the element of “taking” under Connecticut’s larceny laws. Court deems testimony to be sufficient evidence.

The Case

This case arose from an incident that occurred on January 30, 2007. Stratford police responded to a shoplifting in progress at a local Wal-Mart. At the store’s loss prevention office, the officers observed live camera footage of the defendant and her accomplices attempting to hide DVDs, first in a clear plastic tote, then within a suitcase.

The defendant stayed inside the store as the accomplices pushed a cart with the suitcase to a store exit and left it there as they proceeded outside, where they were arrested. The defendant then moved to the cart and pushed it slightly, but was detained before actually leaving the store. Pursuant to police department procedure in shoplifting cases, the officers asked a store employee to scan the DVDs and provide a receipt as if they were purchased. There were 101 DVDs with an aggregate value of $1,822.72.

Charges Made Against the Defendant

The defendant was charged with larceny in the third degree and conspiracy to commit larceny in the third degree. At trial, an officer testified as to how the value of the DVDs was calculated, but could not remember the exact amount. After being shown a copy of his report to refresh his recollection, the officer testified that the total amount was $1,822.72. Defense counsel did not object to the line of questioning or the testimony on the grounds of hearsay or competency. No other evidence regarding the value of the DVDs was provided, such as the receipt or the DVDs themselves.

The defendant was convicted on both counts and sentenced to three years of incarceration. On appeal, she first argued that the officer’s testimony was incompetent evidence that the value of the DVDs exceeded $1,000. He did not have an independent knowledge of their value and was merely reciting a value from a document not entered into evidence. Even if such testimony was competent, the use of the store’s price tags was an inadequate measure of market value. Rather, according to the defendant, evidence of actual sales was necessary.

Sufficiency of Evidence

The Appellate court found that the officer’s testimony was sufficient proof because defense counsel did not object to its admission. “If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have.” The Court noted that “market value” and “selling price” (a.k.a. price tags) are synonymous terms, and that “any evidence which reasonably tends to show the present value of the stolen goods may be admitted.”

The defendant next argued that there was insufficient evidence of a taking, as she was still inside the store and had not brought any DVDs outside at the time she was detained. In Connecticut, larceny consists of “(1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” To constitute a criminal taking, what is necessary is the “implicit transfer of possession or control,” not whether the item itself was removed from the owner’s premises. To constitute larceny in the third degree, the value of the property must exceed $1,000.

Conclusion

In this case, the Appellate Court was once more not persuaded that there was insufficient evidence. The actions taken by the defendant and accomplices “in concealing the DVDs and moving them to an area where they quickly could be removed from the store” was sufficient evidence to establish the essential taking element of larceny.

Written by Lindsay E. Raber, Esq.

When faced with a charge of larceny, burglary, conspiracy, 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.