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State v. Sherbacow

Court of Appeals of Connecticut

May 15, 1990

STATE of Connecticut
v.
Paul S. SHERBACOW.

Argued Jan. 18, 1990.

Page 818

F. Mac Buckley, Hartford, for appellant (defendant).

Susann E. Gill, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert Appleton, Asst. State's Atty., for appellee (State).

Before SPALLONE, FOTI and LAVERY, JJ.

[21 Conn.App. 475] FOTI, Judge.

The defendant appeals from the judgment of conviction, following a court trial, for the sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). [1] The defendant

Page 819

claims that the court erred (1) in denying his motion for judgment of acquittal, (2) in denying his motion for a new trial, (3) in failing to give him the benefit of an adverse inference, (4) in failing to find a violation of the court's sequestration order, and (5) in failing to perform an in camera review of claimed exculpatory material, and consequently denying his motion for sanctions. We find no error.

The court, prior to rendering its judgment, placed an oral memorandum of decision on record, [2] and concluded that the state had sustained its burden of proof [21 Conn.App. 476] as to the guilt of the defendant as charged. The court found that on November 18, 1986, Thomas Cardillo, a known drug trafficker, flew from Tampa, Florida, to Bradley Airport in order to collect money due him from Charles Kehoe, a Hartford drug dealer who had purchased cocaine from Cardillo on prior occasions. There had been an ongoing arrangement between them that Cardillo would supply Kehoe with cocaine on consignment and Kehoe would pay Cardillo when he had the money. When he arrived from Florida, Cardillo had no baggage but brought a change of clothes in a plastic bag. Both Cardillo and Kehoe were under surveillance by members of the statewide narcotics task force from the time of Cardillo's arrival at Bradley Airport until his departure the following day.

Cardillo and Kehoe met at a Hartford restaurant and then went to Kehoe's house. Kehoe intended to pay Cardillo for prior cocaine deliveries and to get more cocaine from him that day. At Kehoe's house, Kehoe gave Cardillo at least $15,000 and possibly as much as $25,000. Cardillo placed the money in a plastic bag. While at Kehoe's house, Cardillo called the defendant, who told him that everything was all set, that Cardillo should come to his house at 7 p.m. that evening, and that he should come alone. At approximately 6 p.m., Cardillo and Kehoe left in Kehoe's car with the plastic bag containing the money. The pair drove to Avon where Kehoe was dropped off at a restaurant. Cardillo then drove to the defendant's house in Simsbury. He arrived there at 7:02 p.m., parked in the driveway, and entered the defendant's residence.

The defendant and Cardillo took two packages of cocaine to the basement where they weighed them. One package was found to weigh 300 grams and the other, 200 grams. Cardillo paid the defendant approximately $16,000 for the 500 grams of cocaine. He informed the [21 Conn.App. 477] defendant that he did not want to drive back to the restaurant to pick up Kehoe with the cocaine in the car because he had been drinking, the car's front end was damaged and he was afraid that he would be stopped and searched.

The defendant accommodated Cardillo by putting the cocaine in a fishing tackle box, placing the box in the trunk of his car, and following Cardillo back to Avon. Cardillo and the defendant left the defendant's house at 7:51 p.m. The defendant drove his own car and Cardillo drove Kehoe's vehicle. At about 7:55 p.m., they arrived at a parking area adjacent to the restaurant where Kehoe had been dropped off. The defendant and Cardillo exited their automobiles and opened the trunks of the two cars. The defendant took a package out of his trunk and placed it in the trunk of Kehoe's vehicle. Both trunks were then closed and the defendant and Cardillo spoke for a few minutes. The defendant then hugged Cardillo and drove off.

Cardillo entered the restaurant and had a drink with Kehoe, after which they both

Page 820

returned to Kehoe's house where they weighed the cocaine.

On December 11, 1986, law enforcement officers, acting pursuant to a warrant, searched Kehoe's house. They discovered approximately 5.1 ounces of cocaine and $6745 in cash. Kehoe identified that cocaine as the remainder of the cocaine purchased from Cardillo on November 18, 1986.

I

The defendant first claims that the court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to sustain the court's findings that the essential elements of identity and sale were proven beyond a reasonable doubt.

[21 Conn.App. 478] When a claim of insufficiency of evidence is made, the reviewing court must examine the record employing a standard of whether the trier of fact could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Messier, 16 Conn.App. 455, 462, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988). As long as the evidence presented at trial was sufficient to allow the trier of fact to reasonably conclude that the state had met its burden of proof, the judgment will be affirmed. State v. Wilson, 17 Conn.App. 97, 99, 550 A.2d 21 (1988); State v. Dumlao, 3 Conn.App. 607, 613, 491 A.2d 404 (1985). "It is axiomatic that in reviewing a claim of insufficiency of the evidence [an appellate court] construes the evidence in the light most favorable to sustaining the jury's verdict and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Cobbs, 203 Conn. 4, 7, 522 A.2d 1229 (1987); State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987). There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986)." State v. Walker, 206 Conn. 300, 315-16, 537 A.2d 1021 (1988).

The state bore the burden of proving that the defendant sold a narcotic substance, cocaine, in violation of General Statutes § 21a-278(b). [3]

[21 Conn.App. 479] The state's case was based substantially on the testimony of Cardillo, Kehoe and law enforcement officers assigned to the statewide narcotics task force who were on the surveillance team. Cardillo's testimony regarding the entire transaction with the defendant, if believed, established that on November 18, 1986, the defendant sold him approximately 500 grams of cocaine that were subsequently delivered to Kehoe. Portions of Cardillo's testimony were corroborated by the testimony of police officers who observed Cardillo going to the defendant's house, saw a package being placed in the trunk, and saw the defendant transferring the package to the trunk of Kehoe's car. Kehoe's testimony corroborated portions of Cardillo's testimony by showing that Cardillo borrowed Kehoe's car and left for approximately one and one-half hours. When Cardillo picked up Kehoe, the two men drove to Kehoe's house where, as Kehoe testified, Cardillo retrieved a package from the trunk of the car and brought it into the house where it was opened and the contents, approximately 500 grams of cocaine, were weighed. Portions of Kehoe's testimony were corroborated by police officers who had both him and Cardillo under ...


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