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David N.J. v. Commissioner of Correction

Court of Appeals of Connecticut

February 28, 2017


          Argued Date October 11, 2016

         Appeal from Superior Court, judicial district of Tolland, Oliver, J.

          Vishal K. Garg, for the appellant (petitioner).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David M. Carlucci, assistant state's attorney, for the appellee (respondent).



          BEACH, J.

The petitioner, David N.J., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court improperly rejected his claim that his trial counsel rendered ineffective assistance by (1) failing adequately to cross-examine the victim and others regarding the victim's version of events, and (2) failing adequately to cross-examine VJ, the victim's brother. We affirm the judgment of the habeas court.

         Our Supreme Court, which affirmed the petitioner's conviction on direct appeal in State v. David N.J., 301 Conn. 122, 19 A.3d 646 (2011), [1] set forth the following facts which the jury reasonably could have found: ‘‘The victim, who is the stepgranddaughter of the [petitioner], was born in August, 1997. From August, 2003, through December, 2005, the victim resided in an apartment in Hartford with her father V, her older brother VJ, and three younger siblings. During that time period, the [petitioner] was a frequent visitor to the victim's home, and he moved into the apartment during the middle of 2005 after his wife entered a nursing home.

         ‘‘Thereafter, the [petitioner] had frequent opportunities to be alone with the victim because V often asked the [petitioner], who temporarily had been out of work due to a fractured arm, to watch the children while V was at work or school. If V was away from home or was at home sleeping, the [petitioner] would often take the victim into his bedroom and engage her in acts of vaginal intercourse, both penile and digital, and fellatio; he gave the victim money after she engaged in these acts. At some point during that two year period, the victim confided in VJ, who was also her best friend, that the [petitioner] had been touching her inappropriately. Thereafter, whenever the [petitioner] took the victim into the bedroom, if VJ was around, he would go to the door and either listen briefly or attempt to peek at what was happening through a small gap at the bottom of the door to the hallway. At one point, VJ was able to see the victim lying naked atop a set of pillows on the floor in the bedroom; the victim subsequently caught VJ at the door when she saw his socks outside the room through the gap and asked him to stop eavesdropping. Neither the victim nor VJ told V of the ongoing abuse because they were afraid that no one would believe them. The victim also feared that V would injure the [petitioner] and then ultimately be sent to prison.

         ‘‘On Christmas Eve in 2005, the [petitioner] made the victim perform fellatio on him before she and her family left to visit her aunt's house. At that time, the family was preparing to move because their apartment was not in good condition, and the [petitioner] was also about to find his own place to live. When they returned home that night, the [petitioner] was not present, and VJ convinced the victim to tell an adult about the abuse. The victim first told R, an older cousin, who instructed her to tell V of the abuse.

         ‘‘The victim told V about the abuse later that day, and V brought the victim to the Connecticut Children's Medical Center. After medical personnel there alerted the [Department of Children and Families (department)] and the Hartford police about the victim's allegations, the victim was referred to the Aetna Foundation Children's Center at Saint Francis Hospital and Medical Center, where she underwent a diagnostic interview by Lisa Murphy-Cipolla, a clinical social worker, and an examination by Frederick Berrien, a physician. The investigation continued when Phillip J. Clark, a Hartford police detective, subsequently reviewed a video recording of Murphy-Cipolla's interview of the victim, and then conducted an interview of the [petitioner].

         ‘‘Subsequently, the state charged the [petitioner] with five counts of sexual assault in the first degree in violation of § 53a-70 (a) (2), and one count of risk of injury to a child inviolationof§ 53-21. The [petitioner's] theory of the case during the subsequent jury trial was that the victim was a habitual liar who, acting in concert with VJ, had fabricated the charges against the [petitioner] to force him to move out because she: (1) was angry that he had taken her bedroom after he moved in; and (2) resented his attempts to discipline her. The jury, however, returned a verdict finding the [petitioner] guilty on counts one, two and five of the information alleging, respectively, sexual assault in the first degree by digital-vaginal penetration, penile-vaginal penetration, and fellatio, and count six alleging risk of injury to a child; the jury found him not guilty on counts three and four of the information alleging sexual assault in the first degree bypenile-anal penetration and cunnilingus. After denying the [petitioner's] motions for a new trial and for a postverdict judgment of acquittal, the trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the [petitioner] to a total effective sentence of twenty-nine years imprisonment with ten years of special parole.'' (Footnotes omitted.) Id., 126-29.

         In July, 2012, the petitioner filed a petition for a writ of habeas corpus. In his second amended petition, the petitioner claimed that his trial counsel were ineffective in numerous ways. At the underlying criminal trial, attorneys Robert Meredith and John Delbarba represented the petitioner as cocounsel. In a posttrial brief, the petitioner argued only that his counsel at the underlying criminal trial rendered ineffective assistance in failing adequately to impeach the testimony of the victim and VJ. The court concluded that counsel did not render ineffective assistance. The court granted the petitioner's petition for certification to appeal. This appeal followed.

         ‘‘Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

         ‘‘The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

         ‘‘To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. . . . Competent representation is not to be equated with perfection. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective atthe time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

         ‘‘With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable. . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'' (Citations omitted; internal quotation marks ...

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