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State v. Gjini

Appellate Court of Connecticut

December 29, 2015

STATE OF CONNECTICUT
v.
GAZMEN GJINI

         Argued September 18, 2015.

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[Copyrighted Material Omitted]

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          Appeal from Superior Court, judicial district Stamford-Norwalk, geographical area number one, Hudock, J.

         Rachel L. Barmack, with whom, on the brief, was Ryan G. Blanch, for the appellant (defendant).

         Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and David R. Applegate, assistant state's attorney, for the appellee (state).

         DiPentima, C. J., and Keller and Mihalakos, Js. KELLER, J. In this opinion the other judges concurred.

          OPINION

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          [162 Conn.App. 119] KELLER, J.

          The defendant, Gazmen Gjini, appeals from the judgment of conviction, rendered following a jury trial, of selling narcotics in violation of General Statutes § 21a-277 (a), engaging police in pursuit (by failing to stop when signaled and increasing his speed in an attempt to escape and elude the police) in violation of General Statutes § 14-223 (b), and possessing a narcotic substance with the intent to sell in violation of § 21a-277 (a).[1] The defendant claims (1) that the trial court improperly denied his motion for a Franks hearing,[2] and (2) the evidence was insufficient to support his conviction of possession of a narcotic substance with the intent to sell. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In 2009, the Stamford Police Department was investigating the defendant for illegal drug related activities. The police were assisted in their investigation by Dennis Thurman, an agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The police used a [162 Conn.App. 120] cooperating witness[3] to pose as a drug buyer and to purchase illegal drugs from the defendant. To this end, on June 13, 2009, under the supervision and surveillance of the police, the cooperating witness met with the defendant at a restaurant located on West Main Street in Stamford, during which interaction the cooperating witness and the defendant " talked about drugs."

         One week following this initial meeting, and under the supervision and surveillance of the police, the cooperating witness contacted the defendant by telephone for the purpose of purchasing narcotics from him. The police provided the cooperating witness with $80 and an automobile to use to complete the transaction. The cooperating witness met the defendant at an agreed upon location, the parking lot of the restaurant located on West Main Street in Stamford, where they had their first meeting. When the defendant arrived at that location, the cooperating witness got into the defendant's automobile, at which time

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she gave the defendant $80 in exchange for slightly less than one ounce of cocaine. Following this transaction, which took approximately two minutes, the cooperating witness returned to her automobile and left the scene. The defendant, likewise, left the scene in his automobile.

         Several weeks later, on July 2, 2009, the defendant sold drugs to one or more cooperating witnesses at the same location where the prior interactions at issue had occurred. After this interaction, one or more police officers observed the defendant drive to his residence, [162 Conn.App. 121] a single family home located at 179 Cedar Heights Road in Stamford.

         On August 13, 2009, the police obtained an arrest warrant for the defendant. That day, the police began to surveil the defendant's residence. The police observed an automobile that they had observed the defendant driving during the course of their investigation, a black 2009 Honda Accord with heavily tinted windows, parked in the driveway. The automobile was registered to Nahile Gjini, the defendant's mother. The police directed the cooperating witness to contact the defendant and arrange to purchase illegal narcotics from him. The cooperating witness informed the police that she had arranged for this transaction to take place at approximately 12:30 p.m., at the restaurant located on West Main Street in Stamford.

         Shortly thereafter, the police observed the defendant exit the residence on Cedar Heights Road, get into the Honda, and drive to the restaurant located on West Main Street in Stamford, where he previously had sold narcotics to the cooperating witness. Two police officers traveling in an unmarked police automobile followed the defendant as he drove to the restaurant, and several other officers were positioned about the parking area near the restaurant, awaiting the defendant's arrival.

         Events in the parking area of the restaurant unfolded quickly. When the defendant arrived, several police officers, in automobiles with lights and sirens activated, approached the defendant's automobile in an attempt to constrain his movement. One officer, Douglas Deiso, attempted to apprehend the defendant. While displaying his police badge, Deiso approached the defendant's automobile on foot and yelled, " police . . . ." Deiso ordered the defendant to turn off his automobile. The defendant looked at Deiso with a blank stare and, [162 Conn.App. 122] instead of obeying his command, he accelerated his automobile in Deiso's direction. Deiso escaped being struck only by moving away from the automobile. The defendant quickly sped away from the scene. In so doing, he dangerously maneuvered around police automobiles, drove on the wrong side of the road, and crossed the double lines on the roadway, ultimately driving onto a nearby highway. Several police officers engaged the defendant in a high-speed pursuit, but they were unable to apprehend him. Police later discovered the defendant's abandoned automobile in Greenwich. The police were unable to locate the defendant at this time.

         Shortly thereafter, two police officers, Christopher Broems and Steven Perrotta, prepared search warrant applications covering the defendant's automobile and the defendant's residence on Cedar Heights Road in Stamford. After obtaining the warrants, the police executed the warrant at the defendant's residence, where the defendant's mother and an attorney were present. There were three bedrooms in the residence: one used by the defendant's mother, one used by the defendant's brother, and one used by the defendant. During their search of the defendant's bedroom, the police found approximately fifty

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grams of cocaine in a nightstand. Also in the bedroom, the police found a number of items (including rubber gloves, plastic bags, a digital scale, a substance frequently used as a cutting agent for drugs and six cell phones) that were consistent with the illegal sale of narcotics. The police found approximately $13,000 in the residence, a large portion of which was found concealed in a bathroom that was located near the defendant's bedroom.[4]

          [162 Conn.App. 123] Several days later, on August 18, 2009, the defendant, facing arrest under two warrants, turned himself in to the police. The present appeal followed his conviction after the jury found him guilty of illegally selling narcotics, possessing a narcotic substance with the intent to sell, and engaging the police in pursuit.[5] Additional facts will be set forth as necessary.

         I

         First, the defendant claims that the court improperly denied his motion for a Franks hearing. We disagree.

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         The following additional facts and procedural history underlie this claim. Prior to the start of trial, the defendant filed a motion for a Franks hearing. [6] The defendant [162 Conn.App. 124] requested that, following such hearing, the court should suppress, as the fruit of an illegal search, evidence that was seized by the police at the residence on Cedar Heights Road in Stamford, and dismiss " the narcotics charges" in the present case. In support of the motion, the defendant argued that, in the application for a warrant to search the residence, Broems and Perrotta, [162 Conn.App. 125] engaged in illegal and improper conduct in that they made false and misleading affirmative representations in their signed and sworn affidavit that was submitted with the application. The defendant argued that, absent these false representations, there were insufficient allegations to support a finding of probable cause to search the residence.

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         In paragraph two of the affidavit, the officers averred in relevant part that the defendant " is currently on probation." In paragraph four of the affidavit, the officers averred as follows: " [During a controlled purchase] that took place on July 2, 2009, Affiant Broems observed [the defendant] leave the meet location after conducting the narcotics transaction and drive to his house located at 179 Cedar Heights Drive, Stamford, CT, without stopping and speaking with anyone." The defendant, referring, in part, to a National Crime Information Center report that he attached to his motion, represented that the averment at issue in paragraph two was false because he had never been on probation. The defendant argued that this statement was deliberately false or was made with a reckless disregard for its truth. The defendant, referring in part to arrest reports that he attached to his motion and the arrest warrant application itself, represented that an averment in paragraph four was false. Specifically, in paragraph four, the officers averred in relevant part that on July 2, 2009, Broems observed the defendant drive directly to the residence on Cedar Heights Drive following a controlled narcotics purchase. The defendant observed that police records that he submitted with the motion reflected that, following the controlled narcotics purchase on July 2, 2009, Broems followed the cooperating witness to a prearranged meeting location. The records did not reflect that, following the purchase, Broems followed the [162 Conn.App. 126] defendant. The defendant argued that the statement of Broems' activity was deliberately false or was made with a reckless disregard for its truth.

         The state objected to the defendant's motion. The state conceded that the averment that the defendant was on probation was not correct. With regard to the second averment at issue in the defendant's motion, that Broems had observed the defendant drive directly to his residence following the controlled narcotics purchase on July 2, 2009, the state argued that the veracity of this statement presented a question of fact. The state argued, however, that the two statements at issue were not essential to a finding of probable cause. The state requested that the court review the application without regard for the statements at issue and conclude that, in their absence, probable cause to search the residence existed.

         In its oral decision denying the defendant's motion, the court stated in relevant part: " My general comment is that I certainly have seen more articulate warrants. However, my evaluation of the case law allows me to consider the entire document . . . . I can consider the entire document as it relates to a finding of probable cause. . . .

         " [P]aragraph one describes the experience of Officer[ s] Broems . . . and Perrotta . . . as far as their experience in the narcotics division is concerned. Paragraph two describes an investigation into the defendant during the months of June, July, and August, 2009.

         " That a cell phone number was being utilized based on that investigation to conduct cocaine deals. That the defendant was utilizing a black Honda Accord . . . to deliver cocaine in Stamford. That the vehicle in question was registered to another individual . . . [Nahile] Gjini . . . of 179 Cedar Heights Road.

          [162 Conn.App. 127] " The investigation revealed that the defendant had been arrested for [the] sale of hallucinogen, possession of marijuana, smuggling, public indecency, ...


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