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State v. McGee

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

October 7, 2015

State of Connecticut
v.
Frank McGee

MEMORANDUM OF DECISION

Roland D. Fasano, J.

By Petition dated July 5, 2015 and the Substituted Petition entitled Sound Basis Analysis, dated August 21, 2015, petitioner alleges that certain convictions and sentences imposed relative to the Second and Third counts of the Information filed in the above entitled matter, constituted violations of the Double Jeopardy Clause of the 5th Amendment to the United States Constitution and the Due Process Clause of Article 1st, Section 9, of the Connecticut Constitution in terms of its protection against double jeopardy.

The Second and Third counts of the Information charge Robbery, in the second degree, in violation of Section 53a-135(a)(1) of the General Statutes and Robbery, in the second degree, in violation of Section 53a-135(a)(2) of the General Statues, respectively.

Petitioner claims, in substance, that under the circumstances of the above entitled matter and for double jeopardy purposes, the two counts of robbery constitute the same offense.

The State responds that since each charge includes an element the other does not, under the current state of the law, the two counts constitute separate offenses.

A full hearing was held on the matter, September 25, 2015.

LAW AND ANALYSIS

" The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) the test to be applied . . . is whether each provision requires proof of a fact which the other does not . . . In conducting this inquiry we look only to the relevant statutes, the information, and the bill of particulars, not the evidence presented at trial." (Internal quotation marks omitted; emphasis added.) State v. Edwards, 100 Conn.App. 565, 590-91, 918 A.2d 1008 (2007).

" Thus, the Blockburger test creates only a rebuttable presumption of legislative intent . . . the test is not controlling when a contrary intent is manifest . . . the burden remains on the defendant to demonstrate a clear legislative intent to the contrary." (Citations omitted; Internal quotation marks omitted.) State v. Underwood, 142 Conn.App. 666, 682, 64 A.3d 1274 (2013).

In this matter there is no bill of particulars or essential facts and the long-form information provides little in the way of substantive content other than the basic elements and statutory language.

Count Two of the information charges, in pertinent part, a violation of Section 53a-135(a)(1) of the General Statutes, in that, at or about a specific time and place " . . . the said Frank McGee, in the course of committing a larceny, used and threatened the immediate use of physical force upon another person, for the purpose of preventing and overcoming resistance to taking of property and to the retention thereof immediately after the taking of the property, and he was aided by another person actually present, to wit: Thomas Carlson." (See Crt's Exh. #1.)

The essential elements of the charge are the commission of a robbery by the defendant and the defendant is aided by another person actually present .

Count Three of the information charges, in pertinent part, a violation of Section 53a-135(a)(2) of the General Statutes, in that, at the same time and place " . . . the said Frank McGee, in the course of committing a larceny, used and threatened the immediate use of physical force upon another person, for the purpose of preventing or overcoming resistance to the taking of property, and he or another participant in the crime threatens the use of what he represented by words or conduct to be a deadly weapon, to wit: a gun." (Crt's Exh. #1.)

The essential elements of this charges is the commission of the robbery and the defendant or another participant threatened the use of what he represented by his words or ...


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