State v. Caponigro

• Decision Date: 08 September 1967
• Docket Number: Nos. CR,s. CR
• Citation: 4 Conn.Cir.Ct. 603,238 A.2d 434
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. John CAPONIGRO. STATE of Connecticut v. Thomas J. PETROCELLI. 7-8616, CR 7-8617.

Page 434

238 A.2d 434

4 Conn.Cir.Ct. 603

STATE of Connecticut v. John CAPONIGRO.

STATE of Connecticut v. Thomas J. PETROCELLI.

Nos. CR 7-8616, CR 7-8617.

Circuit Court of Connecticut, Appellate Division.

Argued April 17, 1967.

Decided Sept. 8, 1967.

James M. S. Ullman, Meriden, for appellants (defendants).

Francis M. McDonald, Deputy Chief Pros. Atty., for appellee (state).

KOSICKI, Judge.

The defendants were tried together on separate informations. Defendant Caponigro was charged in two counts of pool selling in violation of § 53-295 of the General Statutes, and in one count of conducting a baseball pool in violation of § 53-296. This count is not before us on appeal. Defendant Petrocelli was accused on the same two counts of pool selling as his codefendant. Both were found guilty as charged and have appealed. The appeals were joined by order of court. Practice Book §§ 606, 1023; Maltbie, Conn.App.Proc. § 124. Although the combining of the appeals resulted from a motion by the defendants rather than on stipulation of the parties, it was the order of the court that brought about the joinder, without any objection from the state, and the appeals lend themselves to this treatment. See Maltbie, loc. cit.

Before arraignment, pursuant to § 54-33f, the defendants filed a motion to suppress evidence allegedly obtained as a result of the execution of an illegal search warrant. ¹ The defendants' principal claims were (1) lack of probable cause for issuance of the warrant under § 54-33a; (2) insufficiency of the affidavits; (3) hearsay evidence providing the sole basis for the warrant; (4) statement in the affidavit of mere conclusions and not of facts supporting them; (5) defective description of what was to be searched; (6) no description of the persons to be searched; (7) illegal execution by officers; (8) vagueness; and (9) search of a person on premises for which the warrant had been issued but who was not connected therewith or described in the affidavit. At the same time, the defendants filed a motion to disclose the name of the informant alluded to in the affidavit.

Both motions were initially heard by the court, Chernauskas, J., on arguments only, on November 23, 1965. The motion to disclose the name of the informant was denied and was not pursued further, nor was its denial assigned as error on appeal. The abandonment of this claim reflects favorably on the perspicacity of counsel, because nowhere did it appear that such a disclosure would be relevant and helpful to the defense or essential to a fair determination of the cause. For a comprehensive and penetrating analysis of this question, reference is made to McCray v. State of Illinois, 386 U.S. 300, 303-314, 87 S.Ct. 1056, 18 L.Ed.2d 62. We shall, therefore, give the matter of nondisclosure of the informant no further consideration.

The motion to suppress was also denied, without prejudice, and continuance granted for a hearing on evidence solely on the issue whether the officers, in executing the warrant, extended and exceeded the authority given them by the warrant. As to the other issues, it was agreed that they were matters of law and would be submitted on briefs. The burden was on the defendants to establish the facts on which they claimed the evidence should be suppressed. State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305, cert. denied 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962.

At a hearing on January 28, 1966, the only witnesses presented by the defendants were Officer Hourigan of the Meriden police department and Trooper Dewey, Detective Dennerstein and Detective McDonnell of the state police. Detectives McDonnell and Dinerstein had signed and sworn to the affidavit and application for the search and seizure warrant issued on October 11, 1965, by Judge Chernauskas. It is this warrant and the actions taken thereunder which are attacked by the motion to suppress. No finding was requested of Judge Chernauskas, who denied the motion to suppress, and no finding was made. The finding of the trial judge, Herman, J., following a full hearing on the merits, after pleas of not guilty had been entered, contains nothing which bears on the validity of the warrant. The facts found and the conclusions reached relate only to the execution of the warrant. No motion to correct this finding was made; therefore, it must stand. Because of the general assignment that the court erred in concluding on all the evidence that the defendants were guilty of the crimes charged beyond a reasonable doubt, we have examined the entire transcript of evidence. Practice Book §§ 981, 989(6), 995.

Neither hearing developed any evidence to show that the statements of the affiants were untrue; and the judge whose duty it was to pass upon the sufficiency of the application and affidavit was not entitled to discredit what the affiants had declared under oath. McCray v. State of Illinois, supra, 386 U.S. 313-314, 87 S.Ct. 1056. The application and the search warrant were offered in evidence. In substance, the affiants stated the following facts and circumstances: On October 11, 1965, Detectives McDonnell and Dennerstein presented a written and sworn application and affidavit to Judge Chernauskas in which they, as affiants, requested a search and seizure warrant, stating that they had probable cause to believe that 'records, papers, horse bets, monies and other gambling paraphernalia, is (sic) possessed, controlled, designed or intended for use as a means of committing the crime of Pool Selling, Section 53-295 of the General Statutes.' The affiants relied, for their belief, on an anonymous letter, received by the state police department, stating that John Caponigro of 39 Fiesta Heights, Meriden, was a bookie and that Thomas Petrocelli was 'in the lower level of the house taking action on the telephone from runners and bettors.' The affidavit also contained the following information and statement of the affiants. On October 4, 1965, Trooper Coffey of the state police had informed McConnell that he, Coffey, had been told by an informant that a man had been seen in Caponigro's cellar spending a lot of time on the telephone and receiving a great many telephone calls. Both defendants had an arrest record, one for frequenting a gaming house and the other for carrying a weapon in a motor vehicle and for breach of the peace.

Following the receipt of this information, the state police began their own independent investigation. On October 4, McDonnell observed, at about 3:45 p.m., a motor vehicle, with Connecticut registration No. 747-405, parked in front of 39 Fiesta Heights. According to the records of the motor vehicle department, this registration for a black 1961 Ford sedan listed as owner Thomas Petrocelli of 3 Foster Court, Meriden. On October 6, at about 10:15 a.m., McDonnell checked 39 Fiesta Heights and no vehicles were parked near the home. At about 11:45 a.m., he observed the car described above parked at the address mentioned. At approximately 4:15 p.m., the vehicle was still there. At about 4:30 p.m., it was no longer at 39 Fiesta Heights. On October 7, at about 9:15 p.m. (sic), McDonnell saw the mentioned car driving away from 39 Fiesta Heights with a male operator later identified as Thomas Petrocelli. He parked in front of Filippone's Shell Station, 142 Springdale Avenue, Meriden, and remained inside for about five minutes. Next he entered Alnic's Variety Store, 143 Lewis Avenue, Meriden, where he stayed about five minutes. At about 10:20 a.m., the vehicle was again observed parked outside Alnic's Variety Store and, at about 11:15 a.m., Petrocelli left the store. At 11:25 a.m., Petrocelli's car was seen parked in front of 39 Fiesta Heights and he was observed walking up the driveway toward the house. He was seen by McDonnell driving away from the house at about 4 p.m. On October 11, at about 11:20 a.m., Detectives McDonnell and Dennerstein saw Petrocelli get out of an unidentified motor vehicle and walk into the side door of 39 Fiesta Heights.

The first four claims in the motion to suppress are without merit. The judge before whom the affiants appeared with their application and affidavit could reasonably find probable cause for issuing the warrant and that there was ample surveillance and investigation, by the affiants and others of the state police, to support the hearsay evidence which prompted and impelled detective action. Probable cause connotes less than the quality and quantum of evidence which would justify a conviction; and a finding of probable cause may rest on evidence not legally competent in a criminal trial and even upon hearsay, if there is a substantial basis for crediting it. United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684. The law, of course, makes void a search warrant which is based 'upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts.' Nathanson v. United States, 290 U.S. 41, 46, 54 S.Ct. 11, 13, 78 L.Ed. 159. And in State v. Allen, 155 Conn. 385, 391, 232 A.2d 315, 319, the search warrant was held illegal because '(n)either the recital that the affiant had information from a reliable informant nor the statement that there had been surveillance, without sufficient indication of the result of that surveillance, gave the judge of the Circuit Court adequate information to determine for himself whether probable cause for the issuance of the warrant existed.' In the instant case, we are of the opinion that the observed pattern of Petrocelli's apparently meaningless meanderings and his presence for regular, long and specified periods of time at the home of Caponigro, where Petrocelli did not reside, would reasonably lead to the belief that the stops made by him were for purposes of picking up bets or wagers and that his presence in Caponigro's house lent strong credence to the informants' reports, and reasonably accounted for the belief, based on police experience,...