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State v. Urbanowski

Appellate Court of Connecticut

March 1, 2016

STATE OF CONNECTICUT
v.
MICHAEL A. URBANOWSKI

         Argued October 23, 2015

          Two part substitute information charging the defendant, in the first part, with the crimes of assault in the second degree, breach of the peace in the second degree, strangulation in the second degree, threatening in the second degree and use of drug paraphernalia, and, in the second part, with being a persistent serious felony offender, brought to the Superior Court in the judicial district of Tolland, where the first part of the information was tried to the jury before Bright, J.; thereafter, the court granted the defendant's motion for a judgment of acquittal as to the charge of use of drug paraphernalia; verdict and judgment of guilty of assault in the second degree, breach of the peace in the second degree, strangulation in the second degree and threatening in the second degree; subsequently, the defendant was presented to the court on a plea of nolo contendere to the second part of the information; judgment of guilty in accordance with the verdict and the plea, from which the defendant appealed to this court.

          SYLLABUS

         Convicted of assault in the second degree, breach of the peace in the second degree, strangulation in the second degree and threatening in the second degree, the defendant appealed to this court. His conviction resulted from an incident in which the defendant physically assaulted a female acquaintance in his residence when she attempted to leave, and then dragged her along a driveway to her automobile in which he attempted to strangle her. The defendant claimed, inter alia, that the trial court's judgment violated the statutory (§ 53a-64bb [b]) proscription against a conviction of both assault in the second degree and strangulation in the second degree that is based on the same incident. He also claimed that the conviction of assault in the second degree and strangulation in the second degree violated the prohibition against double jeopardy in that he received multiple punishments for two offenses that required proof of substantively identical elements.

          Held :

         1. The defendant could not prevail on his unpreserved claims that his conviction of assault in the second degree and strangulation in the second degree constituted an illegal sentence, and violated the proscription in § 53a-64bb (b) against a conviction of both crimes that arise out of the same act or transaction, as well as the constitutional prohibition against double jeopardy:

         a. Although the defendant's claim involved issues that properly may have been raised before the trial court in a motion to correct an illegal sentence, this court has determined that it is inappropriate to review a claim of an illegal sentence when that claim is raised for the first time on appeal, and the alleged violation of § 53a-64bb (a) was not reviewable under State v. Golding (213 Conn. 233, 567 A.2d 823) because the defendant asserted a statutory rather than a constitutional violation.

         b. The defendant could not demonstrate a violation of the constitutional prohibition against double jeopardy that deprived him of a fair trial because he was unable prove that his separate punishments for assault in the second degree and strangulation in the second degree arose out of the same act or transaction; the evidence and the state's theory of the case reflected that each offense was proven by a separately completed act that was committed with the requisite mental state, the defendant having intended to cause the victim serious physical injury inside the residence when he assaulted her and strangulation inside of her automobile when he held her down, expressed a desire to kill her and wrapped his hands around her neck, thereby restricting her airway or blood flow.

         2. Although the trial court improperly admitted certain evidence of the defendant's alleged prior uncharged misconduct involving another witness for the purpose of evaluating whether, in the context of the strangulation charge here, he intended to impede the victim's ability to breathe or to restrict her blood flow, the defendant failed to demonstrate that the error was harmful; this court had a fair assurance that the erroneous admission of the evidence did not substantially affect the jury's verdict, as the defendant was not surprised by the uncharged misconduct evidence, its presentation was brief and did not create side issues that could have distracted the jury, the evidence was not prominent in the state's case, which was very strong apart from the uncharged misconduct evidence, the uncharged misconduct evidence was remote in time and not more egregious in nature than the evidence of the incident in this case, and the trial court provided the jury with detailed limiting instructions immediately before and after the testimony at issue, and during the jury charge.

         Arthur L. Ledford, assigned counsel, for the appellant (defendant).

         Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicole I. Christie, assistant state's attorney, for the appellee (state).

         Keller, Prescott and Mullins, Js. KELLER, J. In this opinion the other judges concurred.

          OPINION

          [163 Conn.App. 379] KELLER, J.

          The defendant, Michael Urbanowski, appeals from the judgment of conviction, rendered following a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1), breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (2), strangulation in the second degree in violation of General Statutes § 53a-64bb (a), and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). Additionally, following the defendant's plea of nolo contendere, the defendant was convicted of being a persistent serious felony offender in violation of General Statutes § 53a-40 (c) and (j), as alleged in a part B information.[1] The defendant claims that the trial court improperly (1) rendered a judgment of conviction that encompassed both assault in the second degree and strangulation in the second degree or, in the alternative, punished him for both of these offenses in violation of the constitutional prohibition against double jeopardy, and (2) admitted evidence of his prior uncharged misconduct. 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. The victim, Patricia Staveski, became acquainted with the defendant because he was a patron of a bar at which [163 Conn.App. 380] she worked. The victim learned that the defendant was willing to help others by performing maintenance work on their automobiles free of charge. In early May, 2012, the defendant, using parts that the victim had purchased, fixed the brakes in the victim's automobile free of charge.

         On May 11, 2012, the defendant agreed to replace the water pump on the victim's automobile. The victim understood that this would be done without charge, simply as " a nice deed" by the defendant. Late in the day, after the defendant had completed work for his employer, the defendant repaired the victim's automobile in the driveway of a residence, where the defendant was renting a room. The victim sat in her automobile while the defendant performed the repair, which took several hours. While performing the repair, the defendant consumed beer.

         By the time that the defendant finished working on the victim's automobile, it was dark outside. The victim stated that she was tired and that she intended to leave. The defendant " copped an attitude" when the victim made these statements, stating, " you're going to leave after I just helped you out?" Reluctantly, the victim accompanied the defendant inside of the residence. Inside, the defendant played some music, the victim consumed a drink, and the defendant and the victim talked for a brief period of time. The defendant invited the victim to join him in lying down on a couch. The victim declined the invitation and stated that she was leaving. The victim understood the defendant's invitation to lie on the couch to suggest that he wanted to have sexual relations with her. The victim, who had known the defendant for several weeks, did not want an intimate relationship with the defendant, and did not consider him to be a friend or a boyfriend.

         The victim's stated intention to leave caused the defendant to become very angry. The defendant began [163 Conn.App. 381] yelling that the victim was not going to leave. For a brief period of time, the defendant went into a bathroom, at which time the victim used her cell phone to call her son, Jordan Bechard, for assistance. The victim told Bechard that she was in trouble and provided him with the defendant's address. When the defendant came out of the bathroom, he grabbed the cell phone from the victim and destroyed it. Before the call ended abruptly, Bechard heard the defendant yell at the victim to " get the F off" of the cell phone.

         The defendant threw the victim across the room, causing her head to strike a wall in a kitchen. The defendant threw the victim a second time in an area near the kitchen that had a small porch, causing further injury to her head. There, the defendant repeatedly punched the victim in her face for a lengthy period of time.

         The defendant ordered the victim to get up but, by this point in time, she physically was unable to do so. Then, the defendant grabbed the victim by her feet and dragged her down the driveway in the direction of her automobile. The defendant, who was wearing work boots, intermittently punched and kicked the victim in the face and head. A neighbor, Leanne Litz, overheard the defendant yelling, " I'm going to fucking kill you," while the victim repeatedly screamed for help. The neighbor called 911.

         Ultimately, the defendant positioned the victim on a seat in her automobile. He put his weight on her with his knee and repeatedly strangled her by wrapping his hands around her neck and pushing. He punched her in the face with both fists. He stated: " [Y]ou die, bitch. Say goodbye to your kids." Inside the automobile, the victim lost and regained consciousness several times. Several times when she regained consciousness and began to open her eyes, the defendant expressed his [163 Conn.App. 382] anger and assaulted her yet again. At one point, he stated, " [w]hy won't you die, you dumb bitch?"

         After a lengthy assault in the automobile, the defendant walked to a nearby garage on the property. The victim opened a door, fell out of the automobile, and crawled to a neighbor's house that was located across the street, where she summoned help. The neighbor, Andrew Scott, permitted the victim to take refuge inside of his residence, provided assistance to the victim, and called 911. Bechard, who was in Springfield, Massachusetts, when his mother, the victim, called him earlier that evening, arrived at the defendant's residence. Initially, he could not find the victim at the residence, but observed massive amounts of blood in his mother's automobile, which remained in the driveway. The victim used Scott's telephone to call Bechard and inform him of her whereabouts. Later, Bechard accompanied her to a hospital.

         After the victim had fled from her automobile, the defendant drove away from the scene in his automobile. He drove to the home of one of his relatives, where, shortly after his assault of the victim, police found him asleep in the backseat of his automobile. The defendant told police that he had been involved in an altercation with his girlfriend, and police observed that the defendant's knuckles were swollen and that he had dried blood on his hands, clothing, and face. The police officers placed the defendant under arrest.

         Emergency medical personnel provided life sustaining treatment to the victim before they transported her to a hospital. The defendant's assault caused the victim to suffer many serious injuries with long-lasting negative effects that interfered with her ability to engage in the normal activities of life. Among other injuries, the victim suffered a concussion, lacerations and hematomas about her head and face, as well as [163 Conn.App. 383] bruising, especially around her throat and neck. She sustained a " golf ball sized depression" on the top of her head. The assault caused the victim a great deal of pain and, at times, left her unable to see. Immediately following the assault, the victim exhibited confusion, lethargy, and decreased cognitive function. For many weeks following the assault, the victim experienced pain, headaches, dizziness, bruising, vertigo, cognitive impairment, vision problems, and problems with balance. Additionally, the defendant's actions affected the sound of the victim's voice.

         The defendant's case was tried before a jury in December, 2013. This appeal followed the defendant's conviction of assault in the second degree, breach of the peace in the second degree, strangulation in the second degree, and threatening in the second degree. Additional facts will be set forth as necessary.

         I

         First, the defendant claims that the court improperly rendered a judgment of conviction that encompassed both assault in the second degree and strangulation in the second degree. The defendant argues that his conviction of both assault and strangulation violated § 53a-64bb (b). Alternatively, the defendant argues that his conviction of both charges ultimately violated the prohibition against double jeopardy under the state and federal constitutions because, under the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as a result of a single act or transaction, he received multiple punishments resulting from his conviction of two offenses that required proof of substantively identical elements.[2]

          [163 Conn.App. 384] The defendant correctly acknowledges before this court that he failed to raise the present claim, in any form, before the trial court. On multiple grounds, however, the defendant argues that the claim is reviewable on appeal.

         Initially, the defendant argues that his claims " [are] properly preserved in that [he] may challenge the legality of a sentence at any time, and the court has the authority to correct an illegal sentence." This, however, is not an appeal from the denial of a motion to correct an illegal sentence. Although we recognize that the defendant's claim involves issues that properly may have been raised before the trial court in a motion to correct an illegal sentence,[3] we also recognize that, in [163 Conn.App. 385] recent decisions, this court has determined that it is inappropriate to review an illegal sentence claim that is raised for the first time on appeal. " Our rules of practice confer the authority to correct an illegal sentence on the trial court, and that court is in a superior position to fashion an appropriate remedy for an illegal sentence. . . . Furthermore, the defendant has the right, at any time, to file a motion to correct an illegal sentence and raise [an illegal sentence] claim before the trial court." (Citation omitted.) State v. Starks, 121 Conn.App. 581, 592, 997 A.2d 546 (2010) (declining to review unpreserved claim of illegal sentence under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989], or plain error doctrine embodied in Practice Book § 60-5); see also Cobham v. Commissioner of Correction, 258 Conn. 30, 38 n.13, 779 A.2d 80 (2001) (clarifying that " judicial authority" in context of Practice Book § 43-22 refers exclusively to trial court); State v. Crump, 145 Conn.App. ...


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