Judicial District of New Haven at G.A. 23


Criminal; Nolle Prosequi; Whether Nolle Prosequi was Properly Entered as to Certain Narcotics Charges Where the State Claimed that its Main Witness was Legally Unavailable Under General Statutes 54-56b Because he Intended to Invoke his Fifth Amendment Right to Refuse to Testify. By way of a substitute information, the state charged the defendant with possession of narcotics with the intent to sell and possession of narcotics with the intent to sell within 1500 feet of a school. Prior to the start of the trial, the state informed the trial court that its main witness had become legally unavailable and that it therefore intended to enter a nolle prosequi as to the pending charges pursuant to General Statutes 54-56b, which provides in part that "[a] nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled . . . ." The defendant's attorney, who had waived the defendant's presence during this proceeding, declined to object to the entry of the nolles, and, accordingly, the court noted the nolles on the pending charges. Thereafter, the defendant filed a pro se motion to dismiss the narcotics charges, arguing, among other things, that the nolles should not have been entered because the state had failed to establish that its main witness had "died, disappeared or become disabled." The state countered that its witness, who had been arrested shortly before the scheduled start of the defendant's trial, was legally unavailable under 54-56b because he intended to invoke his fifth amendment right to refuse to testify. In denying the motion, the court stated that because the nolles were entered due to the unavailability of a material witness, the defendant was precluded from subsequently moving for a dismissal of the charges. It added that the defendant was no longer being prosecuted for the narcotics offenses and that if the state does not decide to reopen the matter within thirteen months, it will be dismissed by operation of law. In this appeal, the defendant maintains that the state's declaration that its witness would invoke his fifth amendment right not to testify did not amount to a representation that the witness had "died, disappeared or become disabled." In response, the state contends that the trial court lacked jurisdiction to consider the motion to dismiss because it was filed after the case had been terminated by virtue of the entry of the nolles. Alternatively, the state argues that the witness had "become disabled" in light of his arrest and his apparent intention to invoke his fifth amendment rights if called to testify.