STATE v. ALVARO F., SC 18254

Judicial District of Fairfield at G.A. 2


      Criminal; Double Jeopardy; Whether Fourth Degree Sexual Assault Under § 53a-73a (a) (1) (A) and Risk of Injury Under § 53a-21 (a) (2) Constitute the Same Offense for Double Jeopardy Purposes.  In connection with allegations that he inappropriately touched an eleven year old girl on two occasions, the defendant was charged with, among other things, two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and two counts of risk of injury to a minor in violation of General Statutes § 53a-21 (a) (2).  The defendant was charged with committing the sexual assault by intentionally subjecting the child to sexual contact while she was under fifteen years of age.  With respect to the risk of injury charges, he was charged with making contact with the child's intimate parts, while she was under sixteen years old, in a sexual and indecent manner likely to impair her health or morals.  After a jury trial, the defendant was convicted of two counts of fourth degree sexual assault and two counts of risk of injury, and he was sentenced.  On appeal, the defendant claims that his constitutional right against double jeopardy was violated because he received double punishments for two offenses.  The defendant contends that the Blockburger test for proving a double jeopardy violation is satisfied because § 53a-73a (a) (1) (A) does not require proof of a fact that is lacking from § 53-21 (a) (2) and, therefore, the two statutory provisions proscribe the same offense.  He maintains that the "sexual contact" under § 53a-73a (a) (1) (A) is subsumed in "contact with the intimate parts . . . of a child . . . in a sexual and indecent manner likely to impair the health or morals of such child" under § 53a-21 (a) (2).  Moreover, he asserts that the legislature did not clearly intend that multiple punishments be imposed for violations of these two statutory provisions.