January 2, 2018
information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of New Haven and tried to the court, O'Keefe,
J.; judgment revoking the defendant's probation, from
which the defendant appealed to this court. Affirmed.
Tsimbidaros, assigned counsel, with whom, on the brief, were
Christopher Duby, assigned counsel, and Robert O'Brien,
assigned counsel, for the appellant (defendant).
Currie-Zeffiro, assistant state's attorney, with whom, on
the brief, were Michael Dearington, former state's
attorney, and Sean McGuinness, assistant state's
attorney, for the appellee (state).
Keller, Bright and Pellegrino, Js.
defendant, Dave Andaz, also known as David Polek,
appeals from the judgment of the trial court finding him in
violation of his probation pursuant to General Statutes
§ 53a-32. On appeal, the defendant claims that his
due process right to fair notice of the charges against him
was violated by the state's filing of a substitute
information changing the underlying basis for his violation
of probation six days prior to his probation revocation
hearing. We disagree and, accordingly, affirm the judgment of
the trial court.
following facts and procedural history are relevant to our
resolution of the issue on appeal. On April 29, 2014, the
defendant was convicted of possession of a weapon or
dangerous instrument in a correctional institution in
violation of General Statutes § 53a-174a and sentenced
to six years incarceration, execution suspended after
thirteen months, followed by three years of probation. The
court imposed and the defendant agreed to the standard
conditions of probation, which included, inter alia, that he
not violate any state or federal criminal law. The period of
probation began on February 27, 2015. Thereafter, on May 5,
2015, the defendant was arrested following an incident on the
New Haven green when he and two other individuals were seen
assaulting a student from Yale University. On July 29, 2015,
the defendant was arrested when he was found in an abandoned
building at 301 George Street in New Haven and charged with
burglary in the third degree in violation of General Statutes
§ 53a-103, criminal trespass in the third degree in
violation of General Statutes § 53a-109, and larceny in
the sixth degree in violation of General Statutes §
30, 2015, the defendant was arrested on a warrant for a
violation of his probation pursuant to § 53a-32. As the
basis for his violation, the warrant cited the July 29, 2015
arrest as a violation of the general condition of probation
that the defendant not violate any state or federal criminal
law. An attorney was appointed to represent the defendant. On
December 2, 2015, six days before the date of the violation
of probation hearing, the state filed a long form information
substituting the May 5, 2015 arrest, rather than the July 29,
2015 arrest cited in the original warrant, as the underlying
basis for the violation of his probation. The defendant and
his attorney were informed of this change on December 2,
2015. The defendant's attorney did not object to the
change or seek a continuance of the hearing. Following the
violation of probation hearing on December 8, 2015, the court
found by a preponderance of the evidence that the defendant,
by assaulting the victim, violated a criminal law, thereby
violating a general condition of his probation. As a result
of this violation, the court revoked the defendant's
probation and sentenced him to thirty months of
incarceration. This appeal followed. Additional facts will be
set forth as necessary.
defendant's sole claim on appeal is that he was deprived
of his due process right to fair notice of the charges
against him when the state filed a substitute information six
days prior to his probation revocation hearing. The defendant
argues that the late notice caused him unfair surprise and
prejudice in preparing his defense. The defendant concedes that
his due process claim is unpreserved and seeks review
pursuant to State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
to Golding, ‘‘a defendant can prevail on
a claim of constitutional error not preserved at trial only
if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate
harm-lessness of the alleged constitutional violation beyond
a reasonable doubt.'' (Emphasis in original; internal
quotation marks omitted.) State v. Tucker,
179 Conn.App. 270, 279, A.3d (2018). ‘‘In the
absence of any one of these conditions, the defendant's
claim will fail. The appellate tribunal is free, therefore,
to respond to the defendant's claim by focusing on
whichever condition is most relevant in the particular
circumstances.'' (Internal quotation marks omitted.)
State v. Santana, 313 Conn. 461, 469-70, 97
A.3d 963 (2014). Upon review of the record, we conclude that
the defendant has failed to satisfy the third prong of
begin by setting forth the relevant legal principles. It is
well established that the defendant is entitled to due
process rights in a probation violation proceeding.
‘‘Probation revocation proceedings fall within
the protections guaranteed by the due process clause of the
fourteenth amendment to the federal constitution. . . .
Probation itself is a conditional liberty and a privilege
that, once granted, is a constitutionally protected interest.
. . . The revocation proceeding must comport with the basic
requirements of due process because termination of that
privilege results in a loss of liberty.'' (Citation
omitted; internal quotation marks omitted.) State v.
Barnes, 116 Conn.App. 76, 79, 974 A.2d 815, cert.
denied, 293 Conn. 925, 980 A.2d 913 (2009).
‘‘Although the due process requirements in a
probation revocation hearing are less demanding than those in
a full criminal proceeding,  they include the provision of
written notice of the claimed violations to the
defendant.'' (Footnotes added and omitted.) State
v. Repetti, 60 Conn.App. 614, 617, 760 A.2d
964, cert. denied, 255 Conn. 923, 763 A.2d 1043 (2000).
defendant argues that the state did not provide him with
adequate notice of the basis of his violation of probation
when it filed a substitute information six days prior to the
violation of probation hearing. This court has held, however,
that ‘‘[i]t is beyond question that in a criminal
proceeding, the state may change the factual basis supporting
a criminal count prior to trial. See Practice Book §
36-17. If substantive amendments are permissible
prior to trial in a criminal proceeding, then surely our
legislature did not intend to prohibit them prior to a
hearing in a probation revocation proceeding.''
(Footnote in original.) State v.Outlaw, 60
Conn.App. 515, 526, 760 A.2d 140 (2000), aff'd, 256 Conn.
408, 772 A.2d 1122 (2001). The language of Practice Book
§ 36-17 requires only that the substitute information be
filed before the trial or hearing commences, which this court
interprets broadly. See State v.Iovanna,
80 Conn.App. 220, 223, 834 A.2d 742 (2003) (defendant
received adequate notice of grounds on which he was found to
have violated probation where state filed substitute
information with additional charge at beginning of probation
hearing); State v.Repetti, supra,
60 Conn.App. 617 (no due process violation in probation
hearing where state filed ...