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State v. Caballero

Court of Appeals of Connecticut

April 25, 2017

STATE OF CONNECTICUT
v.
ELVIN R. CABALLERO

          Argued Date January 17

         Appeal from Superior Court, judicial district of Litchfield, Danaher, J.

          Sean P. Barrett, Assigned Counsel, with whom, on the brief, was Peter G. Billings, Assigned Counsel, for the Appellant (Defendant).

          Timothy F. Costello, Assistant State's Attorney, with whom, on the brief, were David S. Shepack, State's Attorney, and David R. Shannon, Senior Assistant State's Attorney, for the Appellee (state).

          Sheldon, Beach and Pellegrino, Js.

          OPINION

          PELLEGRINO, J.

         The defendant, Elvin R. Caballero, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124, one count of larceny in the third degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-124, and nine counts of forgery in the first degree in violation of General Statutes § 53a-138 (a) (1). The defendant contends that the court abused its discretion in failing to grant his motion for a bill of particulars, which left him without adequate notice that he was facing conviction under subdivision (3) of § 53a-124 (a) as to the counts of conspiracy to commit larceny in the third degree and larceny in the third degree as an accessory, and thereby deprived him of his constitutional rights. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On or about April 21, 2011, the defendant traveled to the West Cornwall post office. Upon entering the post office, the defendant asked the only postal clerk working that day, Jenna Bascetta-Brown, if he could fill out an application for a United States passport. Bas-cetta-Brown left the front desk for approximately fifteen to thirty seconds to retrieve the application. While she was temporarily out of sight, the defendant reached over the counter, opened an unlocked drawer, and removed a block of blank United States Postal Money Orders (money orders). Bascetta-Brown returned with the passport application, but the defendant left the post office without filling out the form.

         The defendant later contacted his friend, Jonathan Perez, who lived in New Jersey. Perez, in turn, contacted Emily Guzman, who also resided in New Jersey, and told her that if she would help the defendant ‘‘cash some checks, '' the defendant could pay her money in return. The defendant, Perez, and Guzman inscribed the blank stolen money orders using a home printer to make them look as though they had been processed by the post office. Each money order was imprinted to show a value of $388.

         On April 22, 2011, the defendant, Perez, and Guzman traveled from New Jersey to Connecticut in a rental car in order to cash the money orders. They appeared at nine different post office locations throughout the state, including New Haven, Branford, East Haven, Mil-ford, Bridgeport, and West Haven. At each location, Perez filled out the ‘‘from'' section of the money order using a fake name and address. Guzman wrote the ‘‘to'' section using her own name and address, and wrote ‘‘child support'' on the memo line. Guzman then entered the post office, presented the money order and her photo identification, and cashed the money order for the inscribed sum of $388. Afterward, the defendant kept $300 for himself, and Guzman and Perez alternated keeping the remaining $88 from each cashed money order.

         Later that week, Bascetta-Brown noticed that a stack of thirty blank money orders was missing from the West Cornwall post office. She contacted United States Postal Inspector Jason Bourdeau and reported the missing money orders, along with a description of the defendant.[1] Bourdeau was able to trace the unique serial numbers from the money orders through the Federal Reserve Bank check image retrieval database and access images for each missing money order. The images revealed Guzman's name and address, so Bourdeau was able to locate Guzman and interview her in New Jersey. Both Guzman and Bascetta-Brown were able to identify the defendant from a photographic array.

         The following procedural history is also relevant to the defendant's appeal. On July 29, 2013, the state filed a short form information charging the defendant with one count of larceny in the second degree in violation of General Statutes § 53a-123 and one count of forgery in the first degree in violation of § 53a-138. On December 18, 2013, the defendant filed a motion for a bill of particulars and a motion requesting the essential facts underlying the charges.[2] He requested, inter alia, that the state provide him with ‘‘[a]ll of the offenses [with which] [he] is charged and their statutory citations, '' ‘‘which specific prohibited conduct, in the language of the statute, the defendant is alleged to have committed, '' and ‘‘[t]he alleged act or acts of the defendant which allegedly constitute the commission of the offense or offenses.''

         On January 17, 2014, the state filed a substitute short form information charging the defendant with one count of conspiracy to commit larceny in the third degree in violation of §§ 53a-48 and 53a-124, one count of larceny in the third degree as an accessory in violation of §§ 53a-8 and 53a-124, and nine counts of forgery in the first degree in violation of § 53a-138 (a) (1). The substitute short form information did not specify which subdivision of § 53a-124 (a) the defendant was being charged with in regard to the charges of conspiracy to commit larceny in the third degree and larceny in the third degree as an accessory.[3]

         Upon filing the substitute short form information, the prosecutor made the following statement in open court: ‘‘We're reducing the charge to larceny in the third degree, so it's between over $2000 and under $10, 000. . . . [The defendant] was charged with larceny in the second degree, he defrauded a public community, he stole thirty-the facts of the case [are] that this started with the theft of thirty money orders that can be worth up to $1000 each. I downgraded that larceny charge to third degree to make this case as quick and efficient as I can.'' The defendant ...


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