State v. Fox

577 A.2d 1111, 22 Conn. App. 449, 1990 Conn. App. LEXIS 292, 1990 WL 103285
CourtConnecticut Appellate Court
DecidedJuly 24, 1990
Docket7736
StatusPublished
Cited by4 cases

This text of 577 A.2d 1111 (State v. Fox) 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. Fox, 577 A.2d 1111, 22 Conn. App. 449, 1990 Conn. App. LEXIS 292, 1990 WL 103285 (Colo. Ct. App. 1990).

Opinion

Cretella, J.

The defendant appeals after a jury trial from judgment of conviction of (1) attempt to commit larceny by extortion in violation of General Statutes §§ 53a-49 and 53a-122 (a) (1), (2) conspiracy to commit larceny by extortion in violation of General Statutes §§ 53a-48 and 53a-122 (a) (1), and (3) attempt to commit bribe receiving by solicitation in violation of General Statutes §§ 53a-49 and 53a-148. The defendant claims that the court should not have denied his motion for judgment of acquittal because of the insufficiency of the evidence to support his conviction of any of the charges. He also claims that the imposition of special conditions of probation without a hearing deprived him of due process.

The defendant and Edward T. Lynch were tried together. Lynch was charged, tried and convicted of [451]*451the same offenses as the defendant except for bribery by solicitation for which he was not charged. Lynch also appealed to this court, claiming, among other things, that the evidence was not sufficient to convict him. We affirmed his conviction. State v. Lynch, 21 Conn. App. 386, 574 A.2d 230 (1990). The facts that provide a background for the present appeal are fully expounded in State v. Lynch, supra, and will not be set forth here except as relevant to the defendant’s claims.

I

The defendant’s first claim is that the evidence against him was insufficient. “ ‘When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether the “ ‘jury could have reasonably concluded, upon the facts established and the inferences drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ . . .” ’ ” (Citations omitted.) State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990).

A

At trial, the state had the burden to prove beyond a reasonable doubt the elements of criminal attempt to commit larceny by extortion.1

[452]*452The defendant claims that the evidence was insufficient to prove (1) that his conduct instilled a fear in the intended victim, James O. Wood, that he would abuse his public position to the detriment of Wood, (2) that the brokerage commission the defendant sought to obtain was “property” of Wood, and (3) that the defendant attempted to abuse his position as a public servant.

The state produced ample evidence for the jury to conclude that the defendant attempted to instill in Wood a fear that if he refused to share a brokerage commission with the defendant and Lynch, then the defendant would use his position as Enfield’s town planner to the detriment of Wood.

From the evidence presented, the jurors could have reasonably made the following conclusions of fact. The defendant’s duties as town planner included serving as a liaison between the town planning and zoning commission and the zoning board of appeals. In this capacity, he would review the applications pending before the commission and prepare reports for the commission’s review. A former chairman of the zoning board testified that any board member could call the defendant for advice on zoning matters, that the only way to make a fair decision was through the information the defendant provided, and that the defendant was regarded as knowing the applicable zoning ordinances and regulations better than anyone else.

In 1982, Wood was attempting to broker a sale of an old mill complex in Enfield between the owner, Martin Levitz, and a developer and potential buyer, Mario Mozzillo. Because the mill was in an industrial zone, Wood met with the defendant and the director of planning and development at Enfield’s town hall to deter[453]*453mine how the town would view rezoning the mill for residential and retail uses. The defendant admitted on cross-examination that zoning changes would have been necessary to convert the mill complex into housing.

On July 2,1982, Wood told the defendant that Mozzillo had offered $900,000 for the mill. The defendant then asked Wood to attend a meeting at Lynch’s office in Suffield that same afternoon. The defendant, Lynch and Lynch’s son-in-law were at the office when Wood arrived. Levitz arrived later. The meeting occurred in a small conference room.

The defendant conducted the meeting. He reviewed the status of the negotiations between Levitz and Mozzillo, and then said to Wood, “Jim, the only way that you’re going to get this transaction through Town Planning and Zoning in Enfield, is to co-broke this commission with Ed Lynch and Ed Lynch, in turn, will take care of me.” Later in the meeting, Lynch said that “there would be nothing that would be expected, if the course of the deal didn’t go through.”

The defendant argues that the absence of the element of fear was evidenced by the response that Wood made at the meeting. Wood stated that he did not “believe what [he] was hearing.” The defendant characterizes this as a statement of fact, i.e., Wood did not believe what the defendant had said. From this, he argues that the jury could not reasonably infer that Wood feared that he would abuse his public position to Wood’s detriment. The jury, however, could have reasonably found that Wood’s response was simply an expression of astonishment at the defendant’s conduct. As to whether he attempted to instill fear in Wood, his remarks at the July 2 meeting speak for themselves.

The defendant claims that there was no evidence to show that the $27,000 commission, which Wood expected to receive if the sale of the mill was consum[454]*454mated, was “property” within the definition of extortion in General Statutes § 53a-119 (5). General Statutes § 53a-118 (a) (1) defines property as “any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind.” The defendant argues that because Wood had not yet earned his commission, he did not have property that could be extorted from him. This same argument was considered and rejected in State v. Lynch, supra. There we stated that the argument “cannot succeed because it fails to recognize the distinction between the actual commission of a crime and an attempt or conspiracy to commit that crime. . . . Because both attempt and conspiracy are inchoate crimes, the fact that Wood had not yet earned his commission is irrelevant.” Id., 403.

The defendant claims that there was no evidence that the defendant attempted to abuse his position as a public servant. We reject that claim. There was no evidence that Lynch was involved in the prospective deal between Levitz and Mozzillo. Mozzillo did not even know Lynch. The defendant had no open listing with Levitz and no involvement as a real estate agent with the property at the time of the meeting. In State v. Lynch, supra, 398, we stated, “[t]he defendant had no nexus whatsoever with the Mozzillo offer to buy, and, therefore, could not have had any legal expectation of a commission arising from a purchase by Mozzillo.”

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Cite This Page — Counsel Stack

Bluebook (online)
577 A.2d 1111, 22 Conn. App. 449, 1990 Conn. App. LEXIS 292, 1990 WL 103285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fox-connappct-1990.