State v. Weisser

518 A.2d 655, 9 Conn. App. 255, 1986 Conn. App. LEXIS 1173

• Court: Connecticut Appellate Court
• Decided: December 9, 1986
• Docket: 4336
• Status: Published

Opinions

Hull, J.

The defendant was charged in Superior Court in the New Haven judicial district with breach of the peace, in violation of General Statutes § 53a-181, interfering with an officer, in violation of General Statutes § 53a-167a (a), and vending without a permit, in violation of General Statutes § 21-35. The charges arose out of a complaint that the defendant was playing his radio too loud near his flower vendor stand on the corner of York Street and Broadway in New Haven.

He was eventually charged in a second substitute information with the infraction of creating a public disturbance in violation of General Statutes § SSa-lSla.¹ At arraignment, he claimed a trial by jury, which was denied. His case was tried to the court, which found him guilty and fined him $60. In this appeal, the defendant claims two grounds of error in the denial of his claim for a trial by jury: (1) that the court erred in denying him a trial by jury under the provisions of article first, § 8, of the constitution of Connecticut;² and (2) that the court erred in denying him a trial by jury under the provisions of article first, § 19, of the constitution of Connecticut.³

A person charged with an infraction is not entitled to a jury trial under General Statutes § 54-82b.⁴ The use of an information to charge an offense not otherwise entitled to a trial by jury does not thereby entitle a defendant to a trial by jury, despite the provisions of article first, § 8, of the constitution of Connecticut. State v. Gorra Bros., Inc., 4 Conn. Cir. Ct. 488, 236 A.2d 345 (1967).

Concerning the second claim of a right to a trial by jury, we note that General Statutes § 53a-181a is a literal transposing of the introductory language and first three sections of the disorderly conduct statute, General Statutes § 53a-182. This creation of an exact replica of part of the offense of disorderly conduct was enacted in No. 83-226 of the 1983 Public Acts. The purpose of replicating this language of the existing disorderly conduct statute was to give police and the prosecuting authorities discretion to charge, where deemed appropriate, the infraction of creating a public disturbance rather than the class C misdemeanor of disorderly conduct. 26 S. Proc., Pt. 8, 1983 Sess., p. 2535.

We thus look to judicial precedent concerning the right to a trial by jury when charged with disorderly conduct in violation of General Statutes § 53a-182. There is long standing precedent that the crime of disorderly conduct is not substantially similar to any common law crime in Connecticut for which there was a right to a trial by jury. Thus, a defendant is not entitled to a trial by jury under article first, § 19, of the constitution of Connecticut. See State v. Anonymous, (1971-4), 6 Conn. Cir. Ct. 402, 275 A.2d 620 (1971); State v. Boyer, 2 Conn. Cir. Ct. 288, 198 A.2d 222 (1963); State v. Avnayim, 24 Conn. Sup. 7, 185 A.2d 295 (1962). As we stated in O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207, cert. granted, 196 Conn. 812, 495 A.2d 280 (1985), “[i]n the face of this uniform . . . precedent, whether the traditional rule . . . should be reevaluated and possibly discarded in appropriate circumstances is not for this court to decide.”

We find no error.

In this opinion, Bieluch, J., concurred.

1 General Statutes § 53a-181a provides: “(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

“(b) Creating a public disturbance shall be an infraction.”

2 Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. . . .” (As amended by article XVII of amendments.)

3 Article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate . . . . ” (As amended by article IV of amendments.)

4 General Statutes § 54-82b (a) provides: “Any party to a criminal action in the superior court may demand a trial by jury of issues which are triable of right by a jury. There is no right to trial by jury in criminal actions where the maximum penalty is a fine of ninety-nine dollars or a sentence of thirty days, or both.” Public Acts 1986, No. 86-227 (a), effective October 1,1986, amends section 54-82b (a) to raise the amount below which there is no right to a jury trial to $199.