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State v. Peluso

Court of Appeals of Connecticut

January 29, 2019

STATE OF CONNECTICUT
v.
BERNARD J. PELUSO

          Argued October 23, 2018

         Procedural History

         Substitute information charging the defendant with two counts each of the crimes of sexual assault in the first degree and sexual assault in the fourth degree, and with three counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before K. Murphy, J.; thereafter, the court granted the state's motion to amend its information and denied the defendant's motion for judgment of acquittal; verdict and judgment of guilty, from which the defendant appealed. Affirmed.

          James P. Sexton, assigned counsel, with whom were Megan L. Wade, assigned counsel, and, on the brief, Matthew C. Eagan, assigned counsel, and Marina L. Green, assigned counsel, for the appellant (defendant).

          Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy Sendensky, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Sheldon and Bear, Js.

          OPINION

          DiPENTIMA, C. J.

         The defendant, Bernard J. Peluso, appeals from the judgment of conviction, rendered after a jury trial, on two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly granted the state's motion to amend its information.[1] Specifically, he argues that the state lacked good cause to amend its information during trial and, alternatively, that the court improperly concluded that his substantive rights would not be prejudiced by the amendment. We disagree and, thus, affirm the judgment of conviction.

         The jury reasonably could have found the following facts in support of its verdict. In 2008 and 2009, when the victim, S, [2] was in the third grade, she lived in a condominium complex with her mother, her older sister, L, and her older brother. During this time, the defendant lived in the same condominium complex and, approximately three to five times a week, S and L would spend time with him after school. The defendant was ‘‘like an uncle'' to the girls, and he called them ‘‘his nieces.'' Although the defendant had a girlfriend who lived with him, she typically was not home when the girls came over. At some point, while S was still in the third grade, the defendant began to make suggestive comments to her. Soon thereafter, the defendant began sexually assaulting S.

         The state charged the defendant in connection with three separate incidents.[3] The first incident of sexual assault occurred when the defendant and S were alone watching a movie on the couch in the defendant's living room. The defendant put his hands down the S's pants, touched her vagina and digitally penetrated her. After he touched her, the defendant kissed her neck and made her place her hands on his jeans, over his penis. Following the incident, and before she went home, the defendant told S not to tell his girlfriend.

         The second incident occurred when S came over to the defendant's house while he was shaving. The defendant told S to come into the bathroom. When S came into the bathroom, she noticed that the defendant was wearing only a towel, which was wrapped around his waist. While S was in the bathroom with him, the defendant went over to the toilet and urinated. While he was doing so, he told S to touch his penis, which she did. Later that same day, S went and used the defendant's bathroom. While she was in the bathroom, the defendant opened the door and stared at her.

         Finally, the third incident occurred when, on another occasion, the defendant took S upstairs to his computer room. He made S lie on the floor while he performed cunnilingus on her. As with the prior incident on the couch, the defendant told S not to tell his girlfriend.

         At some point after S had finished third grade, the defendant and his girlfriend moved out of the condominium complex. Occasionally, S would still see the defendant, most often when her grandmother would take her out to eat at the restaurant that he owned. As she got older, S saw the defendant less and less frequently. The last time she encountered him was when she was in the ninth grade. S was walking home from her bus stop with a friend, when the defendant pulled up alongside the two girls in his pickup truck. The defendant talked to S briefly before writing down his phone number and giving it to her. He told S to call him sometime.

         In January, 2015, S told a friend about the sexual abuse she had experienced as a child. The next day, the friend notified a guidance counselor, and, in accordance with her obligations as a mandated reporter, [4] the guidance counselor informed the police. Later that day, detectives interviewed S about the allegations. S provided the police with a written statement, in which she detailed the incidents that had occurred while she was in elementary school. In her statement, S indicated that the incidents had occurred when she was in the fifth grade.

         Soon thereafter, the defendant was arrested and charged. The long form information, dated April 19, 2016, alleged that the incidents had occurred during either 2010 or 2011. During trial, however, S testified that the incidents had taken place when she was in the third grade, which would have been in either 2008 or 2009. The following day, the defendant filed a motion for a judgment of acquittal, and the state filed a motion to amend its information to allege that the offenses had occurred in either 2008 or 2009. The court granted the state's motion to amend and denied the defendant's motion for judgment of acquittal. The jury subsequently found the defendant guilty on all seven counts. The court rendered judgment accordingly and sentenced the defendant to a total effective sentence of twenty-two years of incarceration, execution suspended after twelve years, followed by fifteen years of probation. This appeal followed.

         With respect to the defendant's only operative claim on appeal, we begin by noting that a trial court's decision to permit the state to amend its information is reviewed for an abuse of discretion. State v. Grant, 83 Conn.App. 90, 96-97, 848 A.2d 549, cert. denied, 270 Conn. 913, 853 A.2d 529 (2004). We acknowledge, however, that although ‘‘a prosecutor has broad authority to amend an information under Practice Book § [36-17]'' prior to the commencement of the trial, ‘‘[o]nce the trial has started . . . the prosecutor is constrained by the provisions of Practice Book § [36-18]. . . . Practice Book § 36-18 provides in relevant part: After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. . . . It is well settled that the state bears the burden of demonstrating that it has complied with the requirements of § 36-18 in seeking permission to amend the information.'' (Citations omitted; internal quotation marks omitted.) State v. Ayala, 324 Conn. 571, 585, 153 A.3d 588 (2017).

         The following additional facts and procedural history are relevant to the defendant's claim. The day after S testified, the defendant filed a motion for a judgment of acquittal on the grounds that the alleged offenses could not have occurred during the time frame provided in the state's information. In response to the defendant's motion, the state filed a motion to amend its information to conform to the victim's testimony. The defendant objected to the motion to amend, arguing that the state lacked good cause to do so because S had consulted with prosecutors at least two weeks prior to trial and, during this meeting, it was determined that the incidents could not have occurred in 2010 or 2011.[5] Thus, it was the defendant's position that the state had no justifiable reason for failing to amend its information before the commencement of trial. ...


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