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State v. Perez

Court of Appeals of Connecticut

May 9, 2017


          Argued Date January 31, 2017

         Appeal from Superior Court, judicial district of Hartford, geographical area number fourteen, Avallone, J. [judgment]; Dewey, J. [motion for return of seized property].)

          Mitchell Lake, for the appellant (defendant).

          Toni M. Smith-Rosario, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Thomas J. O'Brien, senior assistant state's attorney, for the appellee (state).

          Prescott, Mullins and Bear, Js.


          PRESCOTT, J.

         The issue before us in the present appeal is whether, following the dismissal of all charges against the defendant, Julian Perez, the trial court properly denied his motion requesting the return of a revolver that the police had seized at the time of his arrest.[1] The defendant appeals from the judgment of the court denying his second motion for the return of seized property. He claims on appeal that the court committed plain error by finding that defense counsel had agreed to forfeit the revolver as part of negotiations with the state that resulted in the dismissal of the charges.[2] The state argues that the record simply is inadequate for review of the defendant's claim or, in the alternative, that the defendant has failed to establish that the court's decision was plain error. On the basis of the record presented, we cannot conclude that the trial court improperly denied the defendant's motion, and, accordingly, we affirm the judgment of the court.

         The record reveals the following facts. On May 22, 2014, the defendant was arrested by the Hartford Police Department on charges of disorderly conduct in violation of General Statutes § 53a-182, threatening in the second degree in violation of General Statutes § 53a-62, and possession of marijuana in violation of General Statutes § 21a-279 (c).[3] At the time of the arrest, the police seized from the defendant a concealed, loaded revolver for which he had a valid permit to carry.

         The defendant was arraigned the following day, and the trial court, T. Santos, J., found probable cause for all the charges. The court appointed Jonathan Newman, an assistant public defender, to represent the defendant for bond purposes only. The defendant was released on a promise to appear on June 16, 2014, with the conditions that he (1) surrender to the police any additional firearms he owned, (2) have no contact with the victim or the residence where the arrest occurred, and (3) submit to a drug test on his next court date.

         On June 16, 2014, the defendant appeared and asked for a continuance to June 23, 2014, which the court granted. Although there was no appearance on file, the assistant state's attorney, Thomas J. O'Brien, indicated to the court on the record that the defendant's lawyer, who he identified as ‘‘Attorney Lawlor, '' had asked for the continuance. On June 23, 2014, O'Brien indicated to the court that the defendant had rendered a negative drug test, and, by agreement, the parties were requesting a new court date of July 7, 2014, ‘‘[f]or a possible offer that day.'' The court agreed. On July 7, 2014, the matter was continued by the court to July 28, 2014, because defense counsel ‘‘was not able to make it.'' The parties appeared again on July 28, 2014, at which time the court, at O'Brien's request, agreed to mark the matter over to September 12, 2014, because the defendant was ‘‘going to engage in some counseling in an effort to try to resolve this case.'' On September 12, 2014, O'Brien asked that the matter be docketed for judicial pretrial on October 17, 2014. He indicated to the court that an offer had been extended to the defendant, ‘‘and if he chooses to comply with that, I'll honor the offer prior to the pretrial.'' The details of that offer were not discussed on the record.

         The defendant failed to appear for the October 17, 2014 court date, and a bail commissioner's letter was sent, ordering the defendant to appear on November 14, 2014. At the November 14, 2014 hearing, O'Brien asked the court to mark the matter over by agreement to December 18, 2014, ‘‘as a possible diversionary marking.'' On December 18, 2014, O'Brien informed the court that the defendant had been compliant with all conditions of his release. He asked the court to continue the matter to May 22, 2015, as a diversionary marking, and indicated that, if the defendant remained compliant and there were no arrests or other problems, the state would enter a nolle prosequi to the charges and not oppose a dismissal. The court agreed to the state's request.

         The case returned to the court, Avallone, J., on May 22, 2015.[4] At that time, O'Brien represented to the court that ‘‘[the defendant] was compliant with all the conditions the court set. He completed the mediation program. And based on that, the state will enter a nolle and recommend a dismissal.'' There was no discussion on the record of any agreement between the state and the defendant regarding the property that was seized at the time of the defendant's arrest. The court noted the nolles and then dismissed all charges against the defendant. On the same date, the court also signed orders on form JD-CR-18, Inventory of Property Seized Without a Search Warrant, adjudicating as ‘‘contraband'' all of the items on the inventory list of property seized-the revolver, the holster, the five rounds of ammunition, and the defendant's permit to carry a pistol or revolver-and ordered them turned over to the Connecticut State Police's Bureau of Identification for destruction. Notice of that order was issued to the Hartford Police Department on May 26, 2015. There is no indication in the record that the defendant was present when the court disposed of the seized property or that he was provided notice of the disposition.[5]

         On June 3, 2015, the defendant, acting without counsel, filed a motion for return of seized property. That motion stated in its entirety: ‘‘1. I respectfully request this court to order the return of property seized by Hartford Police on May 22, 2014. 2. The item that was seized and that I request be returned is one Ruger LCR revolver [and] one State of Connecticut pistol permit ID card. 3. I request this return because all alleged charges in the matter have been dismissed in court.''

         The court, Hon. Thelma A. Santos, judge trial referee, heard the motion for return of property the following day on June 4, 2015. O'Brien indicated to the court on the record that the motion was ‘‘a write-in, '' that the defendant was not present, that he had been represented by counsel when his case was dismissed on May 22, 2015, and that ‘‘[t]here was no agreement on the property on the dismissal date.''[6] The record does not indicate whether the defendant had been provided with notice of the hearing. The state argued that Judge Avallone had ordered the property destroyed and that, because neither the defendant nor his counsel was present at the hearing to argue his motion, Judge Avallone's order should stand. The court denied the defendant's motion without engaging in any discussion or analysis of the basis for such a decision. The state asked if the items could be destroyed as previously ordered, and the ...

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