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.
...