AC39217 - Carson v. Allianz Life Ins. Co. of North America ("The plaintiff, Elizabeth Carson, Trustee, appeals from the summary judgment rendered by the trial court in favor of the defendant, Allianz Life Insurance Company of North America. On appeal, the plaintiff claims that the trial court improperly concluded that there was no genuine issue of material fact as to whether her action was barred by the applicable statute of limitations. Specifically, the plaintiff argues that fraudulent concealment on the part of the defendant’s agent, David Faubert, and the continuing course of conduct doctrine tolled the applicable statute of limitations. We affirm the judgment of the trial court.")

• Posted in:
• Insurance Law,
• Recent Opinions,
• Tort Law

AC38718 - Doyle v. Chaplen ("On appeal, Chaplen claims that the trial court erred in granting Doyle’s motion to open the judgment of paternity in the support action for the purpose of declaring him not to be the father of the minor child. Specifically, he claims that the trial court improperly (1) found that Doyle signed the acknowledgment of paternity on the basis of a material mistake of fact, (2) concluded that opening the judgment was in the best interests of the minor child after making a clearly erroneous finding that there was no parent-like relationship between Chaplen and the minor child, and (3) applied the law regarding laches and equitable estoppel. We affirm the judgments of the trial court.")

• Posted in:
• Family Law,
• Recent Opinions

AC39804, AC39806 - Landmark Development Group, LLC v. Water & Sewer Commission (Administrative appeal; appeal from decision by water and sewer commission granting in part application for sewer treatment capacity determination; "This chapter of the protracted dispute between the town of East Lyme (town), and the plaintiffs, Landmark Development Group, LLC, and Jarvis of Cheshire, LLC, involves the plaintiffs' application to the defendant, the town's Water and Sewer Commission (commission), for a determination of sewer treatment capacity.The commission appeals from the judgment of the Superior Court sustaining the plaintiffs' appeal and ordering the commission to grant the plaintiffs' application. On appeal, the commission argues that the court (1) abused its discretion by allowing the plaintiffs to submit supplemental evidence to the court, and (2) improperly concluded that the commission abused its discretion by allocating to the plaintiffs 14,434 gallons per day in sewer treatment capacity. We affirm the judgment of the court.")

• Posted in:
• Administrative Appeal Law,
• Recent Opinions

SC19846 - State v. Simpson (Murder; motion to withdraw plea; certification from Appellate Court; "This appeal presents us with a common scenario: a trial court accepts a guilty plea after a proper canvass, but the defendant subsequently seeks to withdraw the plea due to a change of heart. The question that often emerges from this familiar context is the extent to which the trial court must inquire into the defendant's request. In this case, the Appellate Court concluded that the trial court abused its discretion by failing to conduct (1) an evidentiary hearing on the defendant's motion to withdraw his plea, and (2) an adequate inquiry into the defendant's request for new counsel. The state appeals from the judgment of the Appellate Court reversing the judgment of conviction of the defendant, Earl C. Simpson III, following his guilty plea entered under the Alford doctrine of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8. State v. Simpson, 169 Conn. App. 168, 171–72, 150 A.3d 699 (2016). The state claims that the Appellate Court improperly concluded that the trial court was required to hold hearings on the defendant's motion to withdraw his guilty plea and his request for new counsel. Alternatively, the state claims that the Appellate Court improperly concluded that the trial court did not conduct such hearings. The defendant counters that hearings on both the motion and the request were required, and that the Appellate Court properly concluded that the trial court failed to conduct them. We conclude that the trial court, after conducting a hearing on the defendant's motion to withdraw his guilty plea, properly denied the motion to withdraw, and, therefore, no evidentiary hearing was required. We also conclude that, under the circumstances of this case, no hearing was required on his request for new counsel. Therefore, the judgment of the Appellate Court is reversed.")

AC39141 - State v. Covington (Carrying pistol without permit; criminal possession of firearm; "The defendant, Jeffrey Covington, appeals from the judgment of conviction, rendered following a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35, and the judgment of conviction, rendered following a court trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims that (1) this court should vacate his conviction of carrying a pistol without a permit because the evidence was insufficient to support his conviction for that offense; (2) this court should vacate his conviction of criminal possession of a firearm because, in finding guilt with respect to that offense, the court impermissibly contravened the jury's "verdict" with respect to murder and assault counts with which he also had been charged, thereby violating his right to a trial by jury and his right to a fair trial; and (3) this court should afford him a new sentencing hearing because, at the time of sentencing, the trial court impermissibly relied on facts that contravened the jury's "verdict" with respect to the murder and assault charges. We affirm the judgment of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

SC19961 - Greene v. Commissioner of Correction ("The two primary issues are whether the habeas court properly determined that the petitioner’s due process rights were not violated during the underlying criminal trial when the prosecutor failed: (1) to correct certain allegedly false testimony from one of the state’s key witnesses, Markeyse Kelly and (2) to disclose certain evidence favorable to the petitioner. The third issue, which arose during the habeas trial, is whether the habeas court abused its discretion by denying the petitioner’s request for a capias after Kelly failed to comply with a subpoena commanding his attendance at the habeas trial. We conclude that the habeas court properly determined that the state had not violated the petitioner’s due process rights and that the habeas court did not abuse its discretion by denying the petitioner’s request for a capias. Accordingly, we affirm the judgment of the habeas court.")

• Concurrence

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

SC19881 - State v. Evans (Sale of narcotics by person who is not drug dependent; whether trial court properly denied defendant's motion to correct illegal sentence; whether claim of illegal sentence under Apprendi v. New Jersey (530 U.S. 466) and Alleyne v. United States (570 U.S. 99) was sufficiently colorable to indulge presumption in favor of subject matter jurisdiction; "The principal issue in this appeal is whether our decision in State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), which would require the defendant in the present case, Alrick A. Evans, to prove drug dependency as an affirmative defense to a charge under General Statutes (Rev. to 2011) § 21a-278 (b), remains good law in light of (1) the subsequent decision of the United States Supreme Court in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 314 (2013), and (2) the legislature's recent amendment of § 21a-278 (b) in No. 17-17, § 2, of the 2017 Public Acts (P.A. 17-17). The defendant appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that (1) we should overrule our interpretation of § 21a-278 (b) in Ray, (2) under Alleyne, the state was required to prove his lack of drug dependency beyond a reasonable doubt because it is a fact that would result in an increased mandatory minimum sentence, and (3) the narcotics statutory scheme, which gives the prosecutor the sole authority to decide whether to proceed under § 21a-278 (b), rather than the otherwise identical General Statutes (Rev. to 2011) § 21a-277 (a), violates the separation of powers established by article second of the constitution of Connecticut, as amended by article eighteen of the amendments. The state contends to the contrary, and also argues that the trial court lacked subject matter jurisdiction over the defendant's motion to correct because that motion challenged his underlying conviction, rather than his sentence. Although we conclude that the trial court had subject matter jurisdiction over the defendant's motion to correct, we disagree with the merits of the defendant's claims and reaffirm Ray's holding that drug dependency under § 21a-278 (b) is an affirmative defense that, if proven, reduces a defendant's potential sentence. Accordingly, we affirm the judgment of the trial court.")

SC19880 - State v. Allan (Conspiracy to sell narcotics by a person who is not drug dependent; interfering with officer; whether trial court properly denied defendant's motion to correct illegal sentence; "This appeal is the companion case to State v. Evans, 329 Conn. ___, ___ A.3d ___ (2018), which we also decide today. The defendant, Nemiah Allan, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that we should overrule State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), in which we interpreted General Statutes (Rev. to 2009) § 21a-278 (b) to render drug dependency an affirmative defense to be proven by the defendant because (1) it is no longer good law in light of the subsequent decision of the United States Supreme Court in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and (2) it was wrongly decided as a matter of statutory interpretation. The defendant also argues that the narcotics statutory scheme, which gives the prosecutor the sole authority to decide whether to proceed under § 21a-278 (b), rather than the otherwise identical General Statutes (Rev. to 2009) § 21a-277 (a), violates the separation of powers established by article second of the Connecticut constitution, as amended by article eighteen of the amendments.The state contends to the contrary, and also argues that the trial court lacked subject matter jurisdiction over the defendant's motion to correct because that motion failed to raise a colorable claim challenging his sentence. Although we conclude that the trial court had subject matter jurisdiction over the defendant's motion to correct, we disagree with the merits of the defendant's claims. Accordingly, we affirm the judgment of the trial court denying the defendant's motion to correct an illegal sentence.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

The Connecticut Law Journal, Volume LXXX, No. 7, for August 14, 2018 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 329: Connecticut Reports (Pages 701 - 770)
• Volume 329: Cumulative Table of Cases Connecticut Reports
• Volume 184: Connecticut Appellate Reports (Pages 201 - 277)
• Volume 184: Cumulative Table of Cases Connecticut Appellate Reports
• Miscellaneous Notices
• Notices of Connecticut State Agencies

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

AC38997 - Drabik v. Thomas ("The plaintiff, John Drabik, appeals from the judgment of the trial court dismissing his petition for a bill of discovery against the defendants, Elaine Thomas, a deputy tribal historic preservation officer for The Mohegan Tribe of Indians of Connecticut (tribe), James Quinn, the tribal historic preservation officer for the tribe, and the Tribal Council, the governing body of the tribe, on the ground of tribal sovereign immunity. Specifically, the plaintiff claims that the trial court improperly (1) decided that the petition should be dismissed on the ground that tribal sovereign immunity applies to petitions for a bill of discovery, and (2) determined that the defendants are entitled to tribal sovereign immunity.We affirm the judgment of the trial court.")

• Posted in:
• Civil Procedure,
• Recent Opinions

AC39817 - Farmer-Lanctot v. Shand ("In this negligence action, the plaintiff, Ellen Farmer-Lanctot, appeals from the judgment rendered on a general verdict in favor of the defendant, Matthew Shand. On appeal, the plaintiff claims that the trial court improperly denied the plaintiff's request for a jury charge on (1) the sudden emergency doctrine, (2) the standard of care for a pedestrian in a roadway, and (3) the defendant's duty to yield to pedestrians when making a right-hand turn.We disagree and, accordingly, affirm the judgment of the trial court.")

AC40315 - Palosz v. Greenwich ("In this wrongful death action, the defendant, Board of Education of the Town of Greenwich, appeals from the judgment of the trial court denying its motion to strike the first count of the operative complaint filed by the plaintiffs, Anna Izabela Palosz and Franciszek Palosz, coadministrators of the estate of Bartlomiej F. Palosz (decedent), which stems from the decedent's tragic suicide. On appeal, the defendant claims that the court improperly concluded, as a matter of law, that it is not entitled to sovereign immunity from the plaintiffs' wrongful death claim, in which the plaintiffs allege, in part, that the defendant's employees failed to comply with the antibullying policy that the defendant developed and implemented pursuant to General Statutes (Rev. to 2011) § 10-222d, as amended by Public Acts 2011, No. 11-232, § 1. We affirm the judgment of the trial court.")

• Posted in:
• Recent Opinions,
• Tort Law

SC19804 - Gagliano v. Advanced Specialty Care, P.C. ("The primary issue in this medical malpractice action is whether there was sufficient evidence from which the jury reasonably could have found that the defendant surgical resident, Venkata Bodavula, was an actual agent of the defendant hospital, Danbury Hospital, when he negligently performed a surgical procedure under the supervision of a member of the hospital's clinical faculty who was also the plaintiff's private physician. Upon our grant of certification, Vivian Gagliano (plaintiff) and her husband, Philip Gagliano (collectively, plaintiffs), appeal from the judgment of the Appellate Court reversing the trial court's judgment, in part, as to the hospital's vicarious liability for Bodavula's negligence. We conclude that the trial court properly determined that there was sufficient evidence to establish such an agency relationship, and that imposing vicarious liability on the hospital for Bodavula's actions was not improper.")

• Posted in:
• Medical Malpractice Law,
• Recent Opinions

AC39945 - Thompson v. Commissioner of Correction ("On appeal, the petitioner claims that the court improperly concluded that he failed to prove, by a preponderance of the evidence, that his trial counsel rendered deficient performance because he failed to move for a mistrial or to seek any curative measures following prejudicial testimony from the complainant. We disagree and, accordingly, affirm the judgment of the habeas court.")

AC39234 - Holliday v. Commissioner of Correction ("The petitioner claims that the habeas court erred in dismissing his petition (1) for lack of jurisdiction on the basis of Petaway v. Commissioner of Correction, 160 Conn. App. 727, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017), and (2) without notice or a hearing. For the reasons set forth herein, we disagree and, accordingly, affirm the judgment of the habeas court.")

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

SC19836 - Helmedach v. Commissioner of Correction (Habeas corpus; claim that petitioner's criminal trial counsel rendered ineffective assistance when he delayed presenting favorable plea offer to her and offer was withdrawn; certification from Appellate Court; "In this certified appeal, we consider whether the attorney for the petitioner, Jennifer Helmedach, rendered ineffective assistance when, during trial, he delayed presenting to the petitioner a favorable plea offer from the prosecutor, an offer the prosecutor later withdrew before it could be accepted. We agree with the habeas court and Appellate Court that counsel's delay amounted to deficient performance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and, in light of the fact that the respondent, the Commissioner of Correction, does not contest that the petitioner was prejudiced, we therefore affirm the Appellate Court's judgment.")

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

SC19945 - Kelsey v. Commissioner of Correction (Habeas corpus; request by respondent Commissioner of Correction, pursuant to statute (§ 52-470 [d] and [e]), for order to show cause why habeas petition should be permitted to proceed when petition was filed beyond two year limitation period set forth in § 52-470 (d) (1); "The sole question presented in this certified public interest appeal is whether General Statutes § 52-470 divests the habeas court of discretion to determine when it should act on a motion by the respondent, the Commissioner of Correction, for an order to show cause why an untimely petition should be permitted to proceed. In the present case, the habeas court took no action on the motion of the respondent requesting the court, pursuant to § 52-470 (d) and (e), to order the petitioner, Eric Thomas Kelsey, to show cause why his petition should be permitted to proceed despite his delay in filing it. The court interpreted § 52-470 to deprive it of discretion to act on the respondent's motion prior to the close of all pleadings. Upon concluding both that this matter involved issues of substantial public interest and that further delay may work a substantial injustice, the Chief Justice granted the respondent's request to file an interlocutory appeal pursuant to General Statutes § 52-265a.

In this appeal, we are presented with three proposed interpretations of § 52-470 regarding the degree to which, if at all, that statute constrains the discretion of the habeas court as to when it may act on the respondent's motion for an order to show good cause why a petition should be permitted to proceed when a petitioner has delayed in filing the habeas petition. The habeas court believed that § 52-470 (b) (1) required the court to wait until the close of all pleadings to act on the respondent's motion. The respondent contends that the court mistakenly relied on § 52-470 (b) (1) in declining to act on his motion. The respondent argues that § 52-470 (e) controls and requires that, once the court is presented with a timeliness challenge to the petition, the court must resolve that question before the action is allowed to proceed further. The petitioner agrees with the respondent that § 52-470 (e), rather than § 52-470 (b), applies, but argues that, under that subsection, the habeas court retains discretion to decide when to issue the order. We conclude that § 52-470 (e) applies and does not limit the discretion of the habeas court as to when it may act on a motion for an order to show cause why an untimely petition should be permitted to proceed. Accordingly, we conclude that the habeas court improperly determined that it lacked discretion to act on the respondent's motion for an order to show cause because the pleadings in the case were not yet closed. We therefore reverse the determination of the habeas court that it could not act on the respondent's motion for an order to show cause why the petition should be permitted to proceed.")

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

The Connecticut Law Journal, Volume LXXX, No. 6, for August 7, 2018 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 329: Connecticut Reports (Pages 648 - 701)
• Volume 329: Cumulative Table of Cases Connecticut Reports
• Volume 184: Connecticut Appellate Reports (Pages 1 - 200)
• Volume 184: Cumulative Table of Cases Connecticut Appellate Reports
• Assignment of Judges
• Miscellaneous Notices
• Notices of Connecticut State Agencies

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

SC19935 - Levin v. State (Motion to strike; notice of claim to claims commissioner for permission to file action against state for medical malpractice pursuant to statute (§ 4-160 [b]); sovereign immunity; "The sole question presented in this appeal is whether an action authorized by the claims commissioner, limited to medical malpractice, may survive a motion to strike where the plaintiff was not a patient of the defendant, as required by Jarmie v. Troncale, 306 Conn. 578, 587, 50 A.3d 802 (2012). The plaintiff, Jill K. Levin, administratrix of the estate of Margaret Rohner (decedent), appeals from the judgment rendered in favor of the defendant, the state of Connecticut, after the trial court granted the defendant's motion to strike.The plaintiff argues that Jarmie does not control in the present case because she is not alleging medical malpractice but, rather, "medical negligence," resulting from the care, treatment, and custody of a patient, and from a failure to warn the decedent of the patient's dangerous propensities. Simultaneously, the plaintiff asserts that there is no meaningful difference between her negligence claim and the medical malpractice claim presented to, and authorized by, the claims commissioner. The defendant counters that the trial court properly struck the plaintiff's claim under Jarmie, because it is a medical malpractice action filed by a nonpatient plaintiff. Alternatively, the defendant contends that, even if the plaintiff's claim is one sounding in negligence, the trial court lacked subject matter jurisdiction because the claims commissioner granted permission to bring an action only for medical malpractice. We agree with the defendant and affirm the trial court's judgment in favor of the defendant rendered following the granting of the defendant's motion to strike.")

• Posted in:
• Medical Malpractice Law,
• Recent Opinions

AC41349 - In re Joheli V. (Termination of parental rights; "The respondent father, Luis V., appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Joheli V. On appeal, the respondent claims that the court erred when it determined, pursuant to General Statutes § 17a-112 (j) (3) (B), that he had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life, based solely upon the fact that he is currently incarcerated and awaiting trial for allegedly sexually assaulting Joheli. We affirm the judgment of the trial court.")

• AC41349 Concurrence - In re Joheli V.

• Posted in:
• Juvenile Law,
• Recent Opinions

SC20020, SC20021 - Tannone v. Amica Mutual Ins. Co. ("In these appeals, we again consider whether an automobile insurance policy containing underinsured motorist coverage, as required by state law, can validly exclude benefits to the insured when the owner of the underinsured vehicle is a rental car company designated as a ‘self-insurer’ by the Insurance Commissioner (commissioner) pursuant to General Statutes § 38a-371 (c). We first addressed this issue in Orkney v. Hanover Ins. Co., 248 Conn. 195, 202–206, 727 A.2d 700 (1999), and upheld the validity of § 38a-334-6 (c) (2) (B) of the Regulations of Connecticut State Agencies, which authorizes an exclusion from the underinsured motorist coverage requirement for ‘uninured or underinsured vehicle[s] . . . owned by . . . a self-insurer under any motor vehicle law . . . .’ We came to this conclusion because self-insurers are statutorily required to prove their ability to pay judgments when liable, rendering underinsurance coverage unnecessary in those situations. Orkney v. Hanover Ins. Co., supra, 204–206; see General Statutes §§ 14-129 (b) and 38a-371 (c). Therefore, we decided in Orkney that there was ‘nothing inconsistent between the public policy underlying underinsured motorist coverage and a regulation that permits a coverage exclusion’ for vehicles owned by self-insurers. Orkney v. Hanover Ins. Co., supra, 206.")

• Posted in:
• Insurance Law,
• Recent Opinions

SC19884 - Trinity Christian School v. Commission on Human Rights & Opportunities (Alleged employment discrimination by plaintiff religious institution; motion to dismiss employment discrimination complaint; interlocutory administrative appeal from defendant commission's denial of plaintiff's motion to dismiss employment discrimination complaint; "The plaintiff, Trinity Christian School, appeals from the judgment of the trial court, which dismissed the plaintiff's administrative appeal from the decision of the named defendant, the Commission on Human Rights and Opportunities (commission), for lack of subject matter jurisdiction. The commission had denied the plaintiff's motion to dismiss an employment discrimination complaint brought by a former female employee, who claims that the plaintiff unlawfully terminated her employment on the basis of her sex, marital status and pregnancy, in violation of state and federal employment discrimination laws. The plaintiff appealed from that decision to the Superior Court, claiming that court had jurisdiction to entertain the plaintiff's interlocutory appeal because General Statutes § 52-571b (d), which bars the state from burdening any religious belief, immunizes religious institutions, such as the plaintiff, from employment discrimination actions, and, therefore, the plaintiff was entitled to appeal from that decision under the immunity exception to the general prohibition against such interlocutory appeals. The trial court disagreed, concluding that § 52-571b (d) is not an immunity provision, and, as a consequence, the commission's denial of the plaintiff's motion to dismiss is not an immediately appealable order. The trial court therefore granted the commission's motion to dismiss the plaintiff's administrative appeal. On appeal to this court, the plaintiff raises the same jurisdictional claim that it asserted in the trial court. We agree with the reasoning and conclusion of the trial court, and, therefore, we affirm its judgment dismissing the plaintiff's appeal.")

• Posted in:
• Administrative Appeal Law,
• Employment Law,
• Recent Opinions

AC39300 - State v. Harper (Conspiracy to commit robbery in first degree; attempt to commit robbery in first degree as accessory; "The defendant, Marquis J. Harper, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempt to commit robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a), 53a-49 (a) (2) and 53a-134 (a) (2). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to sustain his conviction and (2) the court improperly declined to furnish a jury unanimity instruction requested by the defendant. We disagree and, accordingly, affirm the judgment of the trial court.")

AC40846 - State v. Ezequiel R. (Aggravated sexual assault of minor; sexual assault in first degree; risk of injury to child; sexual assault in fourth degree; "The defendant, Ezequiel R. R., appeals from the judgment of conviction, rendered following a jury trial, of one count of aggravated sexual assault of a minor in violation of General Statutes § 53a-70c (a) (1), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). On appeal, the defendant claims that the trial court erred by (1) admitting into evidence a video recording of a forensic interview between a clinical child interview specialist and the child victim, and (2) allowing the clinical child interview specialist to render an expert opinion that appeared to be based on the facts of the case. We affirm the judgment of the trial court. ")

AC40655 - State v. McKethan (Murder; carrying pistol without permit; possession of narcotics; motion for joinder; "The defendant, Dequan McKethan, appeals from the judgments of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35 (a), and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that the trial court improperly granted the state's motion for joinder of the two separate cases against him for trial. We disagree and, accordingly, affirm the judgments of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC39313 - Green v. Commissioner of Correction (Habeas corpus; "The petitioner, Courtney Green, appeals from the judgment of the habeas court disposing of his petition for a writ of habeas corpus for lack of jurisdiction. On appeal, the petitioner claims that the court improperly disposed of his petition because it (1) incorrectly concluded that it lacked jurisdiction and (2) failed to conduct a hearing on that issue prior to disposing of the petition. We disagree with the claims of the petitioner and, accordingly, affirm the judgment. ")

AC39830 - Banks v. Commissioner of Correction (Habeas corpus; kidnapping in first degree; robbery in first degree; criminal possession of pistol or revolver; "The dispositive issue in this appeal is whether the absence of a jury instruction required by our Supreme Court's seminal decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and subject to a retroactive application in a subsequent collateral proceeding; see Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011); constituted harmless error. See Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016). This court recently articulated the issue as follows: "[A] defendant who has been convicted of kidnapping may collaterally attack his kidnapping conviction on the ground that the trial court's jury instructions failed to require that the jury find that the defendant's confinement or movement of the victim was not merely incidental to the defendant's commission of some other crime or crimes." Wilcox v. Commissioner of Correction, 162 Conn. App. 730, 736, 129 A.3d 796 (2016). Further, a reviewing court must conclude, beyond a reasonable doubt, that the absence of the Salamon instruction did not contribute to the kidnapping conviction. White v. Commissioner of Correction, 170 Conn. App. 415, 428, 154 A.3d 1054 (2017).

In this case, the respondent, the Commissioner of Correction, bears the arduous burden of demonstrating that the omission of an instruction on incidental restraint did not contribute to the verdict. See, e.g., id., 428–29. Accordingly, our task is not to determine whether sufficient evidence existed in the record to support a conviction of kidnapping or "whether a jury likely would return a guilty verdict if properly instructed; rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result." (Emphasis added.) State v. Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011). We conclude that, under the facts and circumstances of this case, as well as the analysis established in our appellate precedent, the absence of the Salamon instruction was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the habeas court denying the petitioner's petition for a writ of habeas corpus, and remand the case with direction to vacate his kidnapping convictions and to order a new trial with respect to those charges.")

• AC39830 Dissent - Banks v. Commissioner of Correction

AC38401 - Bell v. Commissioner of Correction (Habeas corpus; kidnapping in first degree; robbery in first degree; "The petitioner, Leon Bell, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The habeas court denied the petition after concluding that, although the petitioner was entitled to a jury instruction in accordance with the seminal case of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that failure was harmless beyond a reasonable doubt. The dispositive issue in this appeal is whether the habeas court correctly concluded that the absence of a Salamon instruction in the petitioner's criminal trial was harmless beyond a reasonable doubt. In a separate opinion, which we also release today; see Banks v. Commissioner of Correction, 184 Conn. App. ___, ___ A.3d ___ (2018); we considered the same legal claim under similar facts. In Banks, we concluded that, under the facts of that case, the respondent, the Commissioner of Correction, failed to meet his burden to prove that the absence of the Salamon instruction was harmless beyond a reasonable doubt and therefore the habeas court in that case improperly denied the habeas petition. Id., ___. Our analysis and conclusion in Banks controls the resolution of the present case. Accordingly, we reverse the judgment of the habeas court and remand the case with direction to grant the petition for a writ of habeas corpus and to proceed with a new trial on the kidnapping charges.")

• AC38401 Dissent - Bell v. Commissioner of Correction

• Posted in:
• Habeas Corpus Law,
• Recent Opinions