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State v. Crespo

Court of Appeals of Connecticut

June 18, 2019

STATE OF CONNECTICUT
v.
ANTHONY CRESPO

          Argued January 28

         Procedural History

         Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Middlesex and tried to the court, Suarez, J.; thereafter, the court denied the defendant's motion to dismiss; subsequently, the court, Diana, J., denied the defendant's motion to disqualify the judicial authority; thereafter, the court, Suarez, J., rendered judgment revoking the defendant's probation, from which the defendant appealed to this court. Affirmed.

          Michael S. Hillis, for the appellant (defendant).

          Bruce R. Lockwood, senior assistant state's attorney, with whom, onthe brief, were Peter A. McShane, former state's attorney, and Russell Zentner, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Elgo and Bright, Js.

          OPINION

          ELGO, J.

         The defendant, Anthony Crespo, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court improperly overruled an objection predicated on the right to confront adverse witnesses without making the requisite findingof good cause, (2) the court improperly denied his motion to dismiss due to the imposition of allegedly inconsistent conditions of probation, (3) the court improperly failed to conduct an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), (4) the court abused its discretion in denying his motion for judicial disqualification and (5) the evidence was insufficient to sustain the court's finding that the defendant violated a condition of his probation. We affirm the judgment of the trial court.

         On April 23, 2007, the defendant pleaded guilty to assault in the second degree in violation of General Statutes § 53a-60 (a) (2), risk of injury to a child involving sexual contact in violation of General Statutes § 53-21 (a) (2), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A).[1] At sentencing, the court remarked: ‘‘This is some of the worst treatment of a minor child that I have ever seen in my years on the bench. In my opinion, Mr. Crespo, you are a sexual deviant, and you are a violent and physical human being, except that you are a violent and physical human being toward those who cannot defend themselves.'' The court then sentenced the defendant to a total effective term of sixteen years incarceration, execution suspended after nine and one-half years, followed by fifteen years of probation. The special conditions of probation imposed by the court required, inter alia, that the defendant have ‘‘no unsu-pervised contact with minors under the age of sixteen and that any supervisor be approved by both his treatment provider and his supervising [probation] officer'' (supervisor condition).

         On December 8, 2014, in preparation for his release from incarceration, the defendant signed several standardized forms prepared by the office of adult probation, including one titled ‘‘Sex Offender Conditions of Probation.'' Among the conditions specified therein and marked applicable to the defendant was the following requirement: ‘‘You will not be in the presence of minors, nor have contact in any form, direct or indirect . . . with children under the age of sixteen without Probation Officer approval. Any contact must be reported immediately to a Probation Officer'' (approval condition).

         On March 17, 2015, the defendant's probationary period commenced upon his release from the custody of the Commissioner of Correction. In accordance with the supervisor condition imposed by the court at sentencing, the defendant's wife, Rosa, [2] subsequently was approved as the defendant's supervisor by his probation officer, the treatment provider, and the victim's advocate.

         Approximately nine months into the defendant's probationary period, his probation officer, Michael Sullivan, received a report that a fourteen year old female was living at the apartment that the defendant shared with Rosa. Following aninvestigation, Sullivan obtained an arrest warrant for the defendant's violation of the terms of his probation. In that application, Sullivan alleged that the defendant had violated both the supervisor condition and the approval condition of his probation. The defendant then was arrested and charged with breaching the terms of his probation in violation of § 53a-32.

         A probation revocation hearing commenced on November 8, 2017, at which the court heard testimony from Sullivan and Vanessa Valentin, a probation officer who was involved in the investigation of the defendant's alleged violation of the terms of his probation. When the state rested in the adjudicatory stage of that proceeding, the defendant moved to dismiss the charge on the ground that the approval condition of his probation was inconsistent with the supervisor condition ordered by the trial court. After hearing argument from the parties, the court denied that motion. Defense counsel then asked the trial court to disqualify itself on the ground of bias. In response, the court stated: ‘‘Because of the seriousness of the matter before the court, because of the fact that your client is facing incarceration and because of the fact that you've raised the issue now, at this late stage of the proceeding, I am going to ask that another judge hear your motion to disqualify . . . .'' Following a recess, Judge Leo V. Diana presided over a hearing on the defendant's motion for judicial disqualification, at the conclusion of which the court denied the motion.

         The adjudicatory phase of the probation revocation hearing resumed on November 17, 2017. The defendant presented the testimony of one witness, the fourteen year old female who allegedly resided at the defendant's apartment for a period of time in December, 2016.[3]When her testimony concluded, the defendant rested, and the court heard argument from the parties. The prosecutor argued that the evidence demonstrated that the defendant had violated the approval condition of his probation. The court agreed and found, by a fair preponderance of the evidence, that the defendant had violated the terms of his probation. During the dispositional phase of the proceeding, the court revoked the defendant's probation and sentenced him to a term of six and one-half years of incarceration, execution suspended after five years, followed by ten years of probation.[4] This appeal followed.

         I

         The defendant first contends that the court improperly overruled his objection to certain testimony on confrontation grounds without making a specific finding of good cause. The state counters that this claim is unpreserved. We agree with the state.

         The following additional facts are relevant to the defendant's claim. During his testimony at the probation revocation hearing, Sullivan stated that he had received an anonymous report regarding the defendant's alleged violation of the terms of his probation. When Sullivan then proceeded to describe a meeting with that anonymous person, defense counsel objected on hearsay grounds. The court summarily overruled that objection. Sullivan then was asked about the substance of his conversation with that anonymous person, to which defense counsel again objected, stating: ‘‘Your Honor, I move to strike all of that inquiry for two reasons. One, it isn't just that there were relaxed rules of evidence for these procedures, but the confrontation clause is my client's constitutional right. I have no way of doing any of this with this officer because he's not the person that witnessed or saw any of this. So, it's not just an evidentiary violation, it's a violation of my client's constitutional rights to confront. And therefore, again, also, it contained total hearsay, which is hearsay within hearsay within this. And I believe that they should produce the witness so that witness can be properly cross-examined. Failing to do that, this testimony, should be stricken.'' In response, the court stated, ‘‘Overruled.'' The prosecutor then resumed his questioning of Sullivan, and defense counsel thereafter made no further mention of the confrontation issue.

         As a preliminary matter, we note that the defendant has provided this court with no authority indicating that the right to confrontation contained in the sixth amendment to the United States constitution applies to probation revocation proceedings. See, e.g., State v. Esquilin, 179 Conn.App. 461, 472 n.10, 179 A.3d 238 (2018), and cases cited therein (noting that ‘‘an overwhelming majority of federal circuit and state appellate courts that have addressed this issue have concluded that [the confrontation standard articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)] does not apply to a revocation of probation hearing''). Although defense counsel referenced the ‘‘confrontation clause'' in his objection before the trial court, his claim on appeal is predicated on the due process rights contained in the fourteenth amendment to the United States constitution, which mandate ‘‘certain minimum procedural safeguards before that conditional liberty interest [of probation] may be revoked''; State v. Polanco, 165 Conn.App. 563, 570, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016); including the right to question adverse witnesses.[5] Id., 571.

         The exercise of the right to confront adverse witnesses in a probation revocation proceeding is not absolute, but rather entails a balancing inquiry conducted by the court, in which the court ‘‘must balance the defendant's interest in cross-examination against the state's good cause for denying the right to cross-examine. . . . In considering whether the court had good cause for not allowing confrontation or that the interest of justice [did] not require the witness to appear . . . the court should balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay.'' (Citation omitted; internal quotation marks omitted.) Id. To properly preserve for appellate review a confrontation claim in this context, our precedent instructs that a defendant must distinctly raise the balancing issue with the court at the probation revocation proceeding. If the defendant fails to do so, the claim is deemed unpreserved. See State v. Tucker, 179 Conn.App. 270, 278-79 n.4, 178 A.3d 1103 (‘‘a defendant's due process claim is unpreserved where the defendant never argued to the trial court that it was required to balance his interest in cross-examining the victim against the state's good cause for not calling the victim as a witness''), cert. denied, 328 Conn. 917, 180 A.3d 963 (2018); State v. Esquilin, supra, 179 Conn.App. 474 (same); State v. Polanco, supra, 165 Conn.App. 571 (same).

         The record plainly reflects that the defendant failed to distinctly raise that claim in the present case. For that reason, resort to the familiar rubric of Golding review is unavailing, [6] as the record in such circumstances is inadequate to review the alleged due process violation. See State v. Esquilin, supra, 179 Conn.App. 477-78. Accordingly, we decline to review the merits of the defendant's unpreserved claim.

         II

         The defendant next claims that the court improperly denied his motion to dismiss on the ground that the approval condition included on the sex offender conditions of probation form that he signed in preparation for his release from incarceration was inconsistent ...


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