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State v. Brunori

Court of Appeals of Connecticut

April 24, 1990

STATE of Connecticut
v.
Roger Henry BRUNORI.

Argued Dec. 20, 1989.

Roger Brunori, pro se, appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., Richard Palumbo, Deputy Asst. State's Atty., and Eric Higgins, Legal Intern, for appellee (state).

Before BORDEN, SPALLONE and EDWARD Y. O'CONNELL, JJ.

[21 Conn.App. 332] BORDEN, Judge.

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 [21 Conn.App. 333] and the state filed an information charging him with larceny in the fifth degree

Page 223

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, Hartmere, 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] [21 Conn.App. 334] Judge 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

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not guilty on February 8, 1988. The court ruled that the defendant had not met his burden of establishing [21 Conn.App. 335] that 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).

[21 Conn.App. 336] The short answer to this claim is that there is absolutely no trace in this record of any such instigative or vindictive conduct by ...


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