State v. Brunori

574 A.2d 222, 21 Conn. App. 331, 1990 Conn. App. LEXIS 114
CourtConnecticut Appellate Court
DecidedApril 24, 1990
Docket7129
StatusPublished
Cited by4 cases

This text of 574 A.2d 222 (State v. Brunori) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brunori, 574 A.2d 222, 21 Conn. App. 331, 1990 Conn. App. LEXIS 114 (Colo. Ct. App. 1990).

Opinion

Borden, J.

The defendant appeals from the judgment of conviction, after a court trial, of larceny in the fifth degree in violation of General Statutes § 53a-125a, and of being a persistent larceny offender in violation of General Statutes § 53a-40 (c).1 Pursuant to General Statutes § 53a-40 (h),2 the court sentenced the defendant to serve five years on the persistent larceny offender conviction. The defendant raises five claims of error regarding his persistent larceny offender conviction, and one claim of error regarding the transcript with which he was furnished for this appeal. We find no error.

The defendant’s claims addressed to the persistent larceny offender conviction arise out of the following procedural context.3 On February 8,1988, the defendant appeared in court following a shoplifting incident [333]*333and the state filed an information charging him with larceny in the fifth degree in violation of General Statutes § 53a-125a. When the case was called, the public defender entered a plea of not guilty “[o]n his behalf,” and requested a one day continuance. The court, Hart-mere, J., continued the case to the next day, February 9, 1988, for a pretrial conference. After that conference, the court, Damiani, J., continued the case to February 16, 1988.

On February 23, 1988, the state filed a second part of the information, commonly referred to as a Part B information, charging the defendant with being a persistent larceny offender. This information charged the defendant with two prior convictions of larceny in the sixth degree. The clerk certified on the information that on February 23,1988, at 10:59 a.m., in the courtroom, the defendant was advised of the contents of the Part B information.4 After the state declared that it was ready to proceed, Judge Damiani asked whether the defendant had been advised of the persistent larceny offender charge under the Part B information. The state responded that the defendant had been so advised, and the defendant pleaded not guilty to that charge.5 [334]*334Judge Damiani continued the matter to March 1,1988, and assigned it to Judge Hartmere for trial. The defendant then objected to the filing of the Part B information on the ground that he had already pleaded to the larceny charge. Because the trial had not yet started, the court overruled the objection. On March 3, 1988, the defendant moved to dismiss the charges, challenging the constitutionality of the persistent larceny offender statute.

On March 10,1988, the state filed a substitute Part B information, alleging two different prior larceny convictions, namely, a conviction for larceny in the sixth degree, on or about January 22, 1986, at Bridgeport, and a conviction of larceny in the fourth degree, on or about November 17, 1980, at Bridgeport. The clerk’s certification in the record discloses that on March 10, 1988, at 2:55 p.m., pursuant to Practice Book § 648, outside the courtroom, the clerk advised the defendant of the contents of the Part B information.

On the trial date, March 15, 1988, Judge Hartmere heard the defendant’s motion to dismiss. In addition to his constitutional challenge to General Statutes § 53a-40 (h), the defendant argued that he was not advised of the contents of the first Part B information “in the absence of the judicial authority,” as required by Practice Book § 648,6 and that the state was not entitled to file a Part B information after he pleaded not guilty on February 8, 1988. The court ruled that the defendant had not met his burden of establishing [335]*335that General Statutes § 53a-40 (h) was unconstitutional. With respect to the defendant’s claims that Practice Book § 648 had been violated, the court declined to find whether there was any such violation, but found that, in any event, the defendant had not been prejudiced by the alleged violation.7 The court denied the motion to dismiss.

Thereafter, the defendant was tried to the court under the first part of the information. After the court found him guilty of larceny in the fifth degree, the defendant was put to plea on the March 10,1988 Part B information. He pleaded not guilty, a court trial was held, and the defendant was convicted. This appeal followed.

The defendant first claims that Judge Damiani erred by wrongfully intervening in the prosecutorial function. The defendant argues that on February 23, 1988, the court instigated the original Part B information in retaliation for his refusal to accept a coercive plea bargain, and that the court improperly put the defendant to plea on that information in violation of Practice Book § 647.8 The defendant claims review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

[336]*336The short answer to this claim is that there is absolutely no trace in this record of any such instigative or vindictive conduct by Judge Damiani.9 See State v. Golding, supra, 239. The defendant has not established any such constitutional violation. Id., 240. Although the defendant should not then have been put to plea on the February 23 Part B information under Practice Book § 647, it is clear that he was not prejudiced or unfairly surprised by that violation of the rules of practice; see State v. Servello, 14 Conn. App. 88, 98-99, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988); because ultimately the state proceeded before a different trial judge under a substitute Part B information filed on March 10,1988, about which he was properly advised.

This conclusion also disposes of the defendant’s second claim of error, namely, that the clerk improperly advised him of the contents of the February 23 Part B information in the presence of the judicial authority. See Practice Book § 648. Even if we were to assume [337]*337that, contrary to the clerk’s certification; see footnote 4, supra; the advisement was done in the presence of the judicial authority, the defendant suffered no prejudice in this case.

The defendant next claims that the court erred by permitting the state to file the substitute Part B information and proceed to trial thereon. In State v. Servello, supra, 98, we held that the state “may amend an information to include a Part B persistent offender count prior to the commencement of trial, subject of course, to appropriate action of the trial court upon motion of the defendant.” The same principle permits the state to file a substitute Part B information before commencement of trial. The state has broad authority to amend an information without leave of court prior to the commencement of the trial, subject to the court’s authority upon motion of the defendant to strike any such amendment in order to protect the defendant’s substantive rights. Practice Book § 623; State v. Huff, 10 Conn. App. 330, 345, 523 A.2d 906, cert. denied, [338]*338203 Conn. 809, 525 A.2d 523 (1987).

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Cite This Page — Counsel Stack

Bluebook (online)
574 A.2d 222, 21 Conn. App. 331, 1990 Conn. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brunori-connappct-1990.