January 17, 2019
part substitute information charging the defendant, in the
first part, with two counts each of the crimes of assault in
the second degree and breach of the peace in the second
degree, and, in the second part, with being a persistent
serious felony offender, brought to the Superior Court in the
judicial district of New Britain, geographical area number
fifteen, where the first part of the information was tried to
the jury before D'Addabbo, J.; verdict of
guilty; thereafter, the second part of the information was
tried to the court; judgment of guilty, from which the
defendant appealed to this court. Affirmed.
G. Billings, assigned counsel, with whom, on the brief, was
Zachary E. Reiland, assigned counsel, for the appellant
M. Ralls, assistant state's attorney, with whom, on the
brief, were Brian Preleski, state's attorney, and Evelyn
Rojas, assistant state's attorney, for the appellee
Alvord, Sheldon and Pellegrino, Js.
defendant, Felix A. Irizarry, appeals from the judgment of
conviction, rendered against him following a jury trial on
one count each of assault in the second degree in violation
of General Statutes § 53a-60 (a) (1) and (2), and one
count each of breach of the peace in the second degree in
violation of General Statutes § 53a-181 (a) (1) and (2).
On appeal, the defendant claims that (1) the evidence was
insufficient to support his conviction of second degree
assault in violation of § 53a-60 (a) (1), and (2)
prosecutorial improprieties during closing argument resulted
in the violation of his right to a fair trial. We disagree
and, accordingly, affirm the judgment of the trial court.
jury was presented with the following evidence on which to
base its verdict. On March 22, 2014, the victim, David
Bennett, was standing in front of a neighborhood market in
New Britain when he encountered the defendant exiting the
market. After a short verbal exchange between them, the
defendant retrieved a golf club from a vehicle parked on the
opposite side of the street and began to chase the victim.
During the course of his pursuit, the defendant struck the
victim several times with the golf club, including once in
the arm and once in the face, which resulted in the victim
being knocked to the ground. While the victim was on the
ground, the defendant continued to strike him with the club,
hitting him at least once in the chest. An eyewitness called
911 and reported the incident. The defendant was later
arrested when a truck matching the description of the vehicle
that fled the scene of the assault was stopped by New Britain
police. The defendant was found crouching in the rear cargo
hold of the vehicle. A golf club was also found in the
four count information, the defendant was charged with
assault in the second degree in violation of § 53a-60
(a) (1),  assault in the second degree in violation
of § 53a-60 (a) (2),  breach of the peace in the second
degree in violation of § 53a-181 (a) (1), and breach of
the peace in the second degree in violation of § 53a-181
(a) (2). During the five day trial, the jury heard
testimony with respect to the assault and the victim's
injuries, which included an admission by the defendant that
he struck the victim with a golf club. As a result of the
assault, the victim experienced a momentary loss of
consciousness and suffered a fractured jaw. Emergency medical
responders found that the victim was bleeding from his left
ear when they arrived at the scene.
victim's treating physician, Paul Edward Russo, Jr.,
testified at trial that the victim sustained injuries to his
left cheek, left jaw, right forearm and chest wall. Russo
further testified that when the victim presented at the
hospital emergency department, his arm was tender and
swollen, with a visible contusion and skin avulsion, in
addition to a contusion on the left side of the face. A
computerized axial tomography scan revealed a nondisplaced
fracture of the victim's lower jaw. Three sutures were
necessary to close the wound on the victim's face. The
victim was discharged from the hospital after he was treated
with antibiotics and analgesics, with instructions that he
restrict his diet to liquid puree. He was further instructed
to follow-up at a maxillofacial clinic regarding his jaw
injury. The victim testified that, as of the date of trial,
his jaw still was not fully healed.
of his trial strategy, the defendant chose to testify in his
own defense. Specifically, he testified that, although he
did, in fact, strike the defendant, he did so in
self-defense. Despite the defendant's testimony, the jury
found the defendant guilty on all charges. On May 26, 2016,
the defendant was sentenced to seven years of incarceration,
followed by three yearsofspecial parole.This appeal
defendant raises two claims on appeal. The defendant first
claims that there was insufficient evidence to convict him of
assault in the second degree under § 53a-60 (a) (1), in
that the state did not establish that he caused
‘‘serious physical injury'' to the
victim, as defined by General Statutes § 53a-3
Second, the defendant claims that he was deprived of a fair
trial because of prosecutorial improprieties during closing
argument, in particular, the prosecutor's reference to
and reliance on facts not in the record. Additional facts and
procedural history will be set forth as necessary.
defendant first claims that the evidence presented at trial
was insufficient to establish, beyond a reasonable doubt,
that he caused ‘‘serious physical
injury'' to the victim, as defined by § 53a-3
(4). We disagree.
person can be found guilty of assault in the second degree
under . . . § 53a-60 [(a) (1)] only if he causes serious
physical injury to another person.'' (Emphasis
omitted.) State v. McCulley, 5 Conn.App.
612, 615, 501 A.2d 392 (1985). Section 53a-3 (4) defines
‘‘serious physical injury'' as any
‘‘physical injury which creates a substantial
risk of death, or which causes serious disfigurement, serious
impairment of health or serious loss or impairment of the
function of any bodily organ.''
‘‘[S]erious physical injury'' does not
require a showing of permanency; State v.
Barretta, 82 Conn.App. 684, 689, 846 A.2d 946, cert.
denied, 270 Conn. 905, 853 A.2d 522 (2004); or
‘‘require expert medical testimony, '' so
long as ‘‘there [is] . . . sufficient direct or
circumstantial evidence or a combination of both presented to
the jury from which it may find such injury.''
State v. Rumore, 28 Conn.App. 402, 414, 613
A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992).
Whether an injury constitutes a ‘‘serious
physical injury, '' for the purpose of § 53a-60
(a) (1), is a fact intensive inquiry and, therefore, is a
question for the jury to determine. State v.
Ovechka, 292 Conn. 533, 545-47, 975 A.2d 1
reviewing a sufficiency of the evidence claim, we apply a two
part test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . . This
court cannot substitute its own judgment for that of the jury
if there is sufficient evidence to support the jury's
verdict. . . . On appeal, we do not ask whether there is a
reasonable view of the evidence that would support a
reasonable hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports the
jury's verdict of guilty.'' (Internal quotation
marks omitted.) State v. Stephen J. R., 309
Conn. 586, 593-94, 72 A.3d 379 (2013).
trial, the emergency medical services responder, the
victim's emergency department treating physician, and the
victim all testified as to the injuries sustained by the
victim. During the state's direct examination
of the victim, the victim testified: ‘‘[The
defendant] hit me in the jaw and it fractured my jaw. My
whole jaw [was] dislocated.'' The victim further
testified: ‘‘I stepped back in defense . . .
trying to avoid being hit. He swung several times . . . [and]
hit me several times. . . . [O]nce in the jaw, once in the
rib cage, took a divot out of my wrist. I still have the mark
there and I still have the fractured jaw . . .
.'' (Emphasis added.) The following exchange between
the state and the victim took place:
‘‘[The Prosecutor]: After he hit you in the jaw .
. . [w]as that the point ...