Posts tagged with "sufficient evidence"

Tenured Teacher Suffering Numerous Physical, Psychological Ailments Properly Dismissed

In a recent matter heard in front of the Superior Court of Connecticut in New Haven, a tenured teacher unsuccessfully appealed a school board’s (Board) decision to terminate her employment. The Court determined that the Board’s decision was not arbitrary or capricious, but rather was based upon sufficient evidence.

The plaintiff was a music teacher for many years, but suffered from numerous physical and psychological medical problems that interfered with her performance abilities as an educator. As a result, “she was frequently absent from work not only on a short-term basis, but also for significantly longer periods as a result of several extended leaves of absence which she sought and the Board granted.” However, despite such numerous and extensive accommodations, the plaintiff’s problems only seemed to worsen. For example:

  • She was often characterized as unfocused; disoriented; dazed; confused; exhausted; zoned out; overwhelmed; and “zombie-like.”
  • She had “difficulty leading… [her students] in an organized and flowing manner,” and frequently delegated duties and responsibilities to her paraprofessional, who was not qualified to perform such tasks (i.e. grading, planning, etc.).
  • On more than one occasion, she attempted to dismiss her classroom early due to confusion about schedules or her inability to control misbehaving students.
  • A psychiatrist indicated that the plaintiff had deficits in memory and executive functioning, which would interfere with her ability to perform essential tasks for her position.

Due to the frequency of complaints from parents and students regarding the plaintiff’s conduct, the Board initiated procedure to terminate the plaintiff’s employment, pursuant to Connecticut General Statutes § 10-151(d). It ultimately cited two reasons for termination: 1) “disability, as shown by competent medical evidence” and 2) “[for] other due and sufficient cause.” The plaintiff appealed this decision to the Superior Court, arguing that the decision was “arbitrary and capricious” because there was no evidence to support the reasons given.

When a court considers a teacher’s appeal claiming unlawful termination, it applies the substantial evidence rule, a standard of review similar to that used in assessing jury verdicts in criminal trials. In essence, the court must decide whether the Board’s decision was supported by the evidence presented before it: “evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”

In this case, the Superior Court agreed with the Board: there was sufficient evidence to support both reasons given for termination. Simply based on the psychiatrist’s testimony regarding the plaintiff’s inability to perform at least four major responsibilities in her classroom, the termination was amply supported – however, the additional testimony only bolstered the Board’s decision. The court was not convinced that previous accommodations granted by the Board “compel[ed] the Board to offer additional and potentially limitless future accommodations,” for such concessions appeared ineffectual. Therefore, the Court dismissed the plaintiff’s appeal.

If you have any questions regarding education law matters, please do not hesitate to contact Attorney Joseph C. Maya at the Maya Murphy, P.C. Westport location in Fairfield County at (203) 221-3100 or at JMaya@mayalaw.com.

Written by Lindsay E. Raber, Esq.

Non-Compete Invalidated Due to Unnecessary Restrictions on Future Employment

Non-Compete Invalidated Due to Unnecessary Restrictions on Future Employment
Connecticut Bathworks Corp. v. Palmer, 2003 Conn. Super. LEXIS 2193

Connecticut Bathworks Corporation was a company servicing New Haven, Fairfield, and Litchfield counties that remodeled bathrooms via the installation of prefabricated acrylic bathtub liners and wall systems. The company employed Mr. Palmer from approximately the beginning of April 2001 to February 28, 2003 at which point Mr. Palmer voluntarily terminated his employment. He began to work for Re-Bath of Connecticut, a company in direct competition with Bathworks, the next day. The issue in this case is that Mr. Palmer signed a “Company Confidentiality Agreement” when he began to work for Bathworks that contained a covenant not to compete that prohibited him from “being employed by any business in competition with the plaintiff [Bathworks] within any county in which the plaintiff is doing business for a period of three years from the termination of his employment with the plaintiff”. This created a three-year prohibition on working for a competitor with the tri-county area of New Haven, Fairfield, and Litchfield.
Bathworks sued Mr. Palmer in Connecticut state court and requested an injunction to enjoin him from further violations of the non-compete agreement. The court analyzed the facts of the case, held in favor of Mr. Palmer, and denied Bathworks’s request for injunctive relief. The court’s decision ultimately came down to the issue of whether Mr. Palmer’s employment with Re-Bath would negatively affect Bathworks’s interests and business operations. Bathworks carried the burden of establishing the probability of success on the merits of the case and the court held that it failed to present sufficient evidence to indicate it would be directly and immediately harmed due to breach of the restrictive covenant.
Bathworks argued that Mr. Palmer acquired valuable trade secrets and information during his employment with the company and that his continued employment with Re-Bath would harm its operations. The court however found that Mr. Palmer, as an installer, did not have access to Bathworks’s confidential information or any trade secrets that would put the company at a competitive disadvantage. The court further noted that while Mr. Palmer was a skilled laborer, he was not a high-level executive, nor did he provide “special, extraordinary, or unique” services. Bathworks also failed to present any evidence to show that Mr. Palmer knew of or took part in the company’s sales/marketing activities or the development of a business strategy.
The court stated that its role in deciding the case was to balance the parties’ interest to fairly protect Bathworks’s business while not unreasonably restricting Mr. Palmer’s right to seek employment elsewhere. This agreement however, according to court, unnecessarily restricted Mr. Palmer’s right to work at another company because there was nothing about that employment which would disadvantage Bathworks in the industry. The non-compete agreement went beyond what was reasonably necessary to protect the company’s interests and as such, the court denied Bathworks’s request for an injunction.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Continue Reading

Court Enforces Non-Compete Agreement to Protect Employer’s Business Interests

Court Enforces Non-Compete Agreement to Protect Employer’s Business Interests
Webster Bank v. Ludwin, 2011 Conn. Super. LEXIS 127

Webster Bank is regional commercial bank with headquarters in Waterbury, Connecticut that provides financial services to customers in Connecticut, New York Rhode Island, and Massachusetts. The company employed Mr. Michael Ludwin as a dual employee with UVEST Financial Services from January 2007 until the company terminated his employment in June 2010. Mr. Ludwin signed a new employment agreement with Webster when he became a dual employee wherein the agreement contained a covenant not to compete. The agreement, executed on February 7, 2009, prohibited Mr. Ludwin, for a period of one year following termination, from engaging in competing business activities within twenty-five miles of Webster Bank’s “base of operation”. Additionally, he was obligated to refrain from soliciting Webster’s customers and to “treat as confidential the names and addresses of customers” (non-disclosure clause).
Webster terminated Mr. Ludwin in June 2010 and on July 9, 2010 he began to work for Harvest Capital, LLC, a Wethersfield, CT based financial consulting firm. Webster’s counsel sent Mr. Ludwin a letter reminding him of his obligations under the non-compete agreement contained in his employment contract and demanded that he observe the enumerated restrictions. The bank sued Mr. Ludwin in Connecticut state court for violation of the covenant not to compete when Mr. Ludwin failed to curtail his activities and requested that the court issue an injunction preventing any further breaches of the agreement. The court granted Webster’s request and ordered that Mr. Ludwin “cease and desist from competing with the plaintiffs within a twenty-five mile radius of Hamden and Milford, Connecticut for a period to end on June 30, 2011” and further ordered him to return any and all customer lists that he removed from Webster’s premises.
The court held that injunctive relief was necessary if it was to maintain the status quo between the parties. Webster presented sufficient evidence to demonstrate that it would experience irreparable harm from Mr. Ludwin’s actions in the absence of an injunction. Its customer lists and relationships are valuable business interests that are integral to the success of the company and as such the court identified that Webster had a legitimate business interest that was afforded protection under Connecticut law. Furthermore, the court concluded that the agreement had reasonable provisions that did not excessively favor one party over the other or unnecessarily stifle their future business activities.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Continue Reading

Contract Principles in Connecticut Non-Compete Agreements: Consideration and the Parol Evidence Rule

Contract Principles in Connecticut Non-Compete Agreements: Consideration and the Parol Evidence Rule
United Rentals, Inc. v. Bastanzi, 2005 U.S. Dist. LEXIS 45268

This federal case involved an employee, one Mr. Jeffrey Bastanzi that started his own company in direct competition with his employer while still in its employment, allegedly in violation of a non-compete agreement signed by both parties. Mr. Bastanzi worked for United Rentals, Inc. from July 2003 to March 30, 2005 as a salesperson in the company’s Gainesville, Florida office. United Rentals is a Delaware corporation with principle business operations in Connecticut that rents and sells equipment and contractor supplies (including but not limited to safety equipment, hand tools, anchoring systems, hard hats, and silk fencing). Mr. Bastanzi was provided with United Rentals’ “Business Ethics Policy” and “Conflict of Interest Policy” on the first day of employment wherein the latter contained a clause stating “no employee shall own or have an interest, directly or indirectly, in any competing enterprise or activity, which conflicts or might conflict with United Rentals’ interests, except with the written approval of the Chief Operating Officer”. Ten months into the job, on May 10, 2004, United Rentals had Mr. Bastanzi sign a “Confidentiality and Non-Competition Agreement” containing non-compete, non-disclosure, and non-solicitation clauses. The covenant established a duration of twelve months, a geographical limitation of seventy-five miles in any direction of United Rentals’ Gainesville office, and stipulated that the company be entitled to injunctive relief in the event Mr. Bastanzi violated the agreement.
United Rentals alleged that Mr. Bastanzi breached the agreement by operating his own competing business, B&S Industrial and Contractor Supplies, LLC, while still employed by the company and within the twelve months following his termination. Mr. Bastanzi started B&S with his wife in 2004 and began contacting United Rentals’ vendors to inquire about becoming a distributor for their products. B&S continued to grow at a steady pace and eventually Mr. Bastanzi’s co-workers informed management that he was operating a competing business on the side. United Rentals terminated Mr. Bastanzi after it conducted an investigation into the matter and found the allegations to be true. At this point Ms. Bastanzi began to work full time at his new company B&S, at that time making approximately $30,000.00 in monthly sales. United Rentals proceeded to sue Mr. Bastanzi for breach of the non-compete agreement to which he offered three defenses to the court: 1) the agreement lacked consideration, 2) he signed the restrictive covenant under duress, and 3) the agreement was incomplete.
The court found in favor of United Rentals, ordered the enforcement of the non-compete agreement, and invalidated all of Mr. Bastanzi’s defenses. It concluded that there was indeed adequate consideration in the non-compete agreement that would make it binding upon the parties. Mr. Bastanzi received continued employment at United Rentals at a mutually agreed upon salary plus the added benefit of a conditional severance package, while United Rentals in return received Mr. Bastanzi’s services and the benefit(s) of the restrictive covenant. Citing a previous federal case, Sartor v. Town of Manchester (312 F. Supp.2d 238 (D. Conn. 2004)), the court stated that, “Connecticut recognizes that continued employment is adequate consideration to support non-compete covenants with at-will employees”.
Next, the court concluded that Mr. Bastanzi did not meet the burden of proof with respect to his claim that he signed the agreement under duress. Mr. Bastanzi failed to impress upon the court that United Rentals committed any “wrongful act or threat” in conjunction with him signing the non-compete agreement. Courts have the authority to invalidate a contract/agreement if there is sufficient evidence that one or more of the parties engaged in fraud or wrongful acts, but in the face of insufficient evidence, the court would not invalidate the agreement between United Rentals and Mr. Bastanzi.
Thirdly, the court rejected Mr. Bastanzi’s claim that the non-compete agreement was an incomplete document and therefore not binding upon the parties. To come to this conclusion, the court applied a very important contract principle, that of the Parol Evidence Rule. The rule prohibits the use of evidence outside the content contained within the four corners of the contract/agreement concerning matters discussed and governed by the finalized document. Mr. Bastanzi told the court that he received oral representations from management before he was hired stating he would not have to sign a non-compete agreement with United Rentals. The finalized document signed by Mr. Bastanzi and United Rentals however did not reflect any of these oral representations and there was not sufficient evidence that the terms of the non-compete agreement were designed to render the alleged representations binding upon the parties. Considering this and applying the parol evidence rule, the court ultimately concluded that the agreement was complete and Mr. Bastanzi’s claim lacked merit.

Continue Reading

Defendant’s Actions Evidenced Bigotry and Bias Toward Homosexuals; Intimidation Conviction Upheld

In a recent criminal law matter, the Appellate Court of Connecticut affirmed a defendant’s conviction for intimidation based on bigotry or bias, because the evidence established that he possessed the specific intent to intimidate or harass the victim based on actual or perceived homosexuality.

This case arose from an incident that occurred on September 12, 2005. The victim and defendant were homeless and lived in tents at a wooded campsite. That afternoon, they drank alcohol at a park with an unidentified man (man), who implied that he was homosexual. When the victim and defendant returned to the campsite, the defendant stated he did not want “fags” in their area, particularly the man. The two spent the evening drinking and got into an argument when the victim began undressing. The defendant claimed the victim must be a “fag” because “[o]nly a fag would take his clothes off in front of another man” and because he was spending time with the man.

A fight ensued, lasting at least ten minutes, when the defendant poured a bottle of vodka on the victim and tried to light him on fire. Unsuccessful in this attempt, the defendant then threatened to burn the victim with gasoline before leaving the campsite. The victim went to a local soup kitchen for help, and gave police a sworn statement about what occurred. The defendant was subsequently arrested and signed a waiver of rights before making both oral and written statements, in which he repeatedly used the word “fag.”

A jury found the defendant guilty of attempt to commit assault in the second degree, threatening in the second degree, reckless endangerment in the second degree, intimidation based on bigotry or bias in the second degree, and disorderly conduct. The defendant appealed, arguing in part that there was insufficient evidence that he committed intimidation. He claimed that the State did not prove beyond a reasonable doubt that he had “the requisite specific intent to intimidate or harass [the victim] because of [the victim’s] actual or perceived sexual orientation.”

Connecticut General Statutes § 53a-181k(a) prohibits acts in which a person specifically intends to intimidate or harass another person on the basis of actual or perceived race, religion, ethnicity, disability, sexual orientation, or gender identity. “Specific intent involves a ‘conscious objective to cause [a] result,’” and is often inferred from circumstantial evidence, such as a defendant’s verbal or physical conduct.

The Appellate Court found that there was sufficient evidence for the jury to reasonably conclude that the defendant possessed the required specific intent to violate § 53a-181k(a). Based on his oral and written statements, the jury could infer a bias toward homosexuals as well as his question as to whether the victim was homosexual as well. He stated he did not want homosexuals at the campsite and then accused the victim of being a “fag” before fighting him. In addition, the defendant attempted to set the victim on fire, and threatened a second attempt to do so. Therefore, “the jury could have inferred that the defendant acted with intent to harass or to intimidate [the victim] because of his actual or perceived sexual orientation.” Thus, the judgment was affirmed.

When faced with a charge of assault, threatening, or intimidation, 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.

Continue Reading

Immersing Child Into Steaming Bathwater Constitutes Reckless Assault

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence claim, citing ample evidence that placing a child into extremely hot bathwater was reckless conduct.

This case arose from an incident that occurred on January 10, 2002 in New Haven, Connecticut. The defendant lived with his girlfriend and her three children, including two-and-a-half year old W. The defendant regularly cared for W, including bathing, without incident. On the morning in question, neighbors heard loud banging noises coming from the defendant’s apartment, as well as W crying and the defendant repeatedly yelling at W to be quiet.

Paramedics responded to a 911 call placed by the defendant. W had sustained second and third degree burns to his body up to his hands and forearms, and suffered serious medical side effects. When paramedics were treating the child, a sergeant with the police department walked into the bathroom and “noticed that there was water in the bathtub and steam rising from the water.” Two detectives returned to the apartment to re-create what occurred. They followed the defendant’s explanation of how he prepared the bath, and the thermometer produced a water temperature reading of 160 °F, which “cooled” to 120 °F after thirty minutes.

At trial, the defendant testified that he was unaware of the bathtub’s excessive temperature. He stated that he placed W into the bathtub and left the room for at least ten minutes, at which point he returned, saw W’s skin floating in the water as well as the burns, and promptly called 911. He could not recall W screaming, yelling, or crying in the bathtub. However, W’s attending physician explained that “on the basis of the pattern of injuries and severity of the burns, W’s injuries must have been inflicted intentionally and not accidentally.” A professor of pediatrics testified that W’s injuries were a “classic, textbook case of abusive immersion burns” that were the result of an intentional “hot, quick dip.” The defendant was convicted of first degree assault (specifically reckless assault) and risk of injury to a child, in violation of Connecticut General Statutes (CGS) §§ 53a-59(a)(3) and 53-21(a)(1) respectively. On appeal, the defendant argued in part that the evidence was insufficient to convict him of the assault charge.

Under CGS § 53a-59(a)(3), a person commits reckless assault when with extreme indifference to human life, he or she “recklessly engages in conduct which creates a risk of death to another person,” but instead causes serious physical injury to that person. “Reckless” conduct is that which shows the actor knew of but consciously disregarded a substantial or unjustifiable risk, which is of such a nature that disregarding it “constitutes a gross deviation” from a reasonable person’s conduct under the circumstances.

In this case, the question is whether or not dipping a child into scalding bathwater is reckless conduct creating a risk of death. The Appellate Court held that the jury could reasonably have found that the defendant immersed W into extremely hot water, and this conduct was a gross deviation from what is considered reasonable. Because the defendant’s conduct “constituted a conscious disregard for the risk of serious physical injury to W,” there was sufficient evidence to convict him of reckless assault.

When faced with a charge of assault or risk of injury to a child, 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.

Continue Reading

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

In a recent 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.

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.

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.

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.

Continue Reading

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

In a recent 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.

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.

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.

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.

Continue Reading

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

In a recent 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.

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.

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.

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.

Continue Reading

Jury Reasonably Inferred Defendant Intended to Sell Cocaine He Constructively Possessed

In a recent 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).

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 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.

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.

Continue Reading