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State v. Jerzy G.

Supreme Court of Connecticut

July 11, 2017

STATE OF CONNECTICUT
v.
JERZY G.[*]

          Argued February 21, 2017

         Procedural History

         Information charging the defendant with the crime of sexual assault in the fourth degree, brought to the Superior Court in the judicial district of Fairfield, where the court, Iannotti, J., granted the defendant's application for accelerated rehabilitation; thereafter, the court, Arnold, J., denied the defendant's motion to dismiss and terminated the order of accelerated rehabilitation, and the defendant appealed to the Appellate Court, Gruendel, Mullins and Solomon, Js., which dismissed the appeal, and the defendant, on the granting of certification, appealed to this court. Reversed; further proceedings.

          Kelly Billings, assistant public defender, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, senior assistant state's attorney, for the appellee (state).

          James P. Sexton, Emily Graner Sexton and Marina L. Green filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

          Anthony D. Collins, Meghann E. LaFountain and Yazmin Rodriguez filed a brief for the American Immigration Lawyers Association as amicus curiae.

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.

         Syllabus

         The defendant, a Polish citizen who had been charged with sexual assault in the fourth degree, appealed to the Appellate Court from the trial court's orders terminating his participation in a statutory (§ 54-56e) pretrial diversionary program of accelerated rehabilitation and ordering his rearrest, following his deportation from the United States for overstaying the term of his visitor's visa. At the hearing on the application for the diversionary program, the state brought to the court's attention that it had received information from United States Immigration and Customs Enforcement that the defendant had overstayed his visa and that it would commence removal proceedings if the defendant was convicted of the charge. The court did not reference the defendant's immigration status when it granted the defendant's application for accelerated rehabilitation in April, 2012, imposed a two year period of supervision with certain conditions, and released the defendant from custody. The court continued the case until 2014, when the period of probation would terminate upon successful completion of the program. The defendant was deported to Poland in August, 2012, and was prohibited from entering the United States for a period of ten years from his departure date. In November, 2013, when the defendant's deportation was brought to the trial court's attention, the court advanced the date for a determination of whether the defendant had successfully completed the terms of accelerated rehabilitation. Defense counsel asked the court to continue the case or to find that the defendant had successfully completed the program and to dismiss the criminal charge. The trial court found that the defendant had offered no proof that his deportation was solely a consequence of either his arrest, the pendency of the criminal charge or his entrance into the accelerated rehabilitation program, nor did he offer any proof of compliance with the conditions of participation in that program. The court ordered his rearrest and imposed as a condition of release that he post a $5000 bond. On appeal to the Appellate Court, the defendant claimed that the trial court had abused its discretion in denying his motion to dismiss the criminal charge or by refusing to continue the case until he could return to the state to complete the program. The Appellate Court, relying on State v. Aquino (279 Conn. 293), rejected the defendant's argument that the termination of accelerated rehabilitation gave rise to collateral consequences that could satisfy mootness concerns, concluding that, because the defendant had produced no evidence to establish that, in the absence of the termination of accelerated rehabilitation, he would be permitted to reenter, visit, or naturalize, the purported collateral consequences of the termination were too conjectural. The Appellate Court dismissed the defendant's appeal as moot and, therefore, did not reach the merits of the defendant's claims. On the granting of certification, the defendant appealed to this court. Held that the Appellate Court improperly dismissed the defendant's appeal as moot, the record having established that it was reasonably possible that the trial court's orders would give rise to prejudicial collateral consequences should the defendant seek to lawfully reenter the United States, from which the court could afford practical relief, and, accordingly, the case was remanded to the Appellate Court to consider the merits of the defendant's appeal; unlike in Aquino, the record here established the reason for the defendant's deportation and that this reason did not permanently bar him from reentering the United States, but only barred his reentry for ten years from the date of his departure, and the reasonably possible collateral consequences resulting from the trial court's orders included the fact that there was a pending criminal charge against the defendant that could be a significant factor in dissuading federal immigration officials from admitting him into the country, and that, even if he was admitted, he would be subject to arrest upon entry, for which he would have to post bond in order to obtain release or be imprisoned.

          OPINION

          McDONALD, J.

         In State v. Aquino, 279 Conn. 293, 298, 901 A.2d 1194 (2006), this court concluded that a deported defendant's challenge to the denial of his motion to withdraw his guilty plea was moot because, in the absence of evidence that the attendant conviction was the sole barrier to the deportee's ability to reenter the United States or to obtain naturalization, the court could not afford the deportee practical relief. In the present case, the Appellate Court concluded that, under Aquino, the appeal of the defendant, Jerzy G., from the trial court's order terminating his participation in an accelerated rehabilitation program and ordering his rearrest on the pending criminal charge was rendered moot by his deportation because the reason for his deportation was unrelated to that program or that charge. State v. Jerzy G., 162 Conn.App. 156, 161, 164, 130 A.3d 303 (2015). We conclude that Aquino, properly construed, does not control the present case because the record establishes the reason for the defendant's deportation and there is a reasonable possibility that the trial court's orders would result in prejudicial collateral consequences. Accordingly, the Appellate Court improperly dismissed the defendant's appeal as moot.

         The record reveals the following undisputed facts. The defendant is a citizen of Poland. In April, 2006, he entered the United States on a nonimmigrant B-2 visitor's visa, which authorized him to remain in this country for a period not to exceed six months. Approximately six years later, in January, 2012, the defendant was charged with one count of sexual assault in the fourth degree, a class A misdemeanor, in violation of General Statutes § 53a-73a (a) (2). The defendant filed an application for the pretrial diversionary program of accelerated rehabilitation, which vests the court with discretion to suspend criminal prosecution for certain offenses and to release the defendant to the custody of the Court Support Services Division for a specified period, subject to conditions the court deems appropriate. See General Statutes § 54-56e (a), (b) and (d). Upon successful completion of the program for the specified period, the defendant would be entitled to dismissal of the charge. See General Statutes § 54-56e (f). The state opposed the application.

         At an April, 2012 hearing on the application, the state brought information to the court's attention that it had received from United States Immigration and Customs Enforcement (ICE) regarding the defendant's immigration status. ICE informed the state that the defendant had overstayed his visa. ICE indicated that it would commence removal proceedings if the defendant was convicted of the charge, but was uncertain about what would happen if he was not convicted. The state also informed the court that the complainant, an acquaintance of the defendant, had reported that the defendant has a wife and children who are living in Poland.

         Following argument, the trial court, Iannotti, J., granted the defendant's application for accelerated rehabilitation and made no reference to the defendant's immigration status. The court made the requisite statutory findings that the offense was not serious and that the defendant was not likely to reoffend. See General Statutes § 54-56e (a) and (b). The court imposed the maximum statutory period of supervision, two years, and the following conditions: no contact with the complainant; mental health evaluation and treatment as deemed necessary; substance abuse (alcohol) evaluation and treatment as deemed necessary; and seek and maintain full-time employment. The court continued the case until April, 2014, when the two year period of probation would terminate upon successful completion of the program. Thereafter, the defendant was released from custody.

         Between May and August, 2012, ICE took steps to remove the defendant from the United States. In May, the defendant was taken into custody by ICE after he was served with a notice to appear. The notice stated that he was subject to removal because he had remained in the United States for a period longer than permitted, without authorization. In June, a United States Immigration Court ordered his removal from the United States. Following that order, the United States Department of Homeland Security issued a notice to the defendant, warning him that he was prohibited from entering the United States for a period of ten years from his departure date because he had been found deportable ...


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