In re Jeremy M., (AC 26548) (Conn. App. 4/10/2007)

• Decision Date: 10 April 2007
• Docket Number: (AC 26548)
• Court: Connecticut Court of Appeals
• Parties: IN RE JEREMY M.<SMALL><SUP>*</SUP></SMALL>

Page 1

IN RE JEREMY M.^*

(AC 26548)

Appellate Court of Connecticut

Argued October 17, 2006

Officially released April 10, 2007

Appeal from Superior Court, judicial district of Tolland, Juvenile Matters at Rockville, Graziani, J.

Annacarina Del Mastro, senior assistant public defender, for the appellant (respondent).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Joseph J. Kristan, Jr., juvenile prosecutor, for the appellee (petitioner).

Flynn, C. J., and Schaller and Lavine, Js.

Opinion

FLYNN, C. J.

The respondent, Jeremy M., appeals from the judgment of the trial court adjudicating him a delinquent for having committed the crime of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1).¹ On appeal, the respondent claims that (1) there was insufficient evidence for the court to find that he had committed a breach of the peace, (2) the court improperly failed to inquire into his complaints concerning a breakdown in communication between him and his court-appointed counsel and (3) the court improperly appointed a guardian ad litem to represent him in the delinquency proceedings and failed to instruct the guardian ad litem about her duties.² We affirm the judgment of the trial court.

The court reasonably could have found the following relevant facts and procedural history. On the afternoon of April 8, 2004, the respondent, who then was thirteen years old, was playing in the front yard of his house at the edge of the street with two of his friends. The respondent had a pellet gun in his possession, which was a replica of a Double Eagle 2000, .45 caliber handgun. As the respondent was playing with the replica .45 caliber handgun, he pointed the gun at the victim, an eleven year old girl, who was playing with her younger brother in the driveway of their home, which was located across the street from the respondent's house. After observing the respondent point the gun at her, the victim became scared and upset and ran into her house, informing her mother of the respondent's actions. The victim's mother then looked outside and noticed the respondent and two boys playing with a gun. The victim's mother reported the incident to the police. Officer Timothy Bergean of the Enfield police department responded to the scene, and, after investigating the incident, he arrested the respondent.

In a delinquency petition, the petitioner, the commissioner of children and families, charged the respondent with two counts of brandishing a firearm in violation of General Statutes § 53-206c and two counts of breach of the peace in violation of General Statutes § 53-181.³ After several continuances occurring within a three month period, the trial commenced on December 7, 2004, in the Superior Court for Juvenile Matters.

On the opening day of trial, the petitioner presented Bergean as a witness. Bergean testified that upon arriving at the scene, he interviewed the victim, as well as the victim's brother and mother. Then, Bergean went to the respondent's house to question him, in the presence of his father, concerning the incident. During his conversation with Bergean, the respondent admitted to playing with a pellet gun, which was an imitation .45 caliber handgun, and to pointing the gun across the street. The respondent, however, denied pointing the gun at anyone. According to Bergean, the distance from the respondent's house to the victim's house was approximately twenty yards. Bergean further testified that he inspected and subsequently seized the respondent's pellet gun, which was a replica of a Double Eagle 2000, .45 caliber handgun. The pellet gun, according to Bergean, resembled a "modern day handgun" and not an antique firearm. In his testimony, Bergean acknowledged that from a distance of approximately twenty yards, he would be unable to discern whether the respondent's gun was real or fake. Following Bergean's testimony, the court continued the trial until January 11, 2005.

On January 11, 2005, the petitioner resumed the pre-sentation of her case against the respondent by introducing the victim and the victim's mother as witnesses. The victim testified that on April 8, 2004, the respondent, who was standing across the narrow street from the victim, pointed a gun at her and her brother. After observing the respondent point the gun at them, the victim and her brother hid behind their mother's car, which was parked in the driveway, and then ran into their house because they were scared. The victim further testified that as a result of the respondent's conduct, she became very upset and cried.

The victim's mother testified that on April 8, 2004, her children suddenly ran into the house crying. After learning the cause of the children's distress, the victim's mother looked out the window and observed the respondent, along with two other youths, playing with a gun. The victim's mother also testified that she saw the respondent wave the gun around and point it at various things. Although the victim's mother stated that the gun appeared real, she acknowledged that she could not determine positively whether the respondent's gun was real from her vantage point at the window.

The respondent then presented one of the boys who had been playing with the respondent on the afternoon of the incident as a witness. During his testimony, the boy acknowledged that the victim and her brother were playing across the street. The boy, however, testified that the respondent did not point the pellet gun at the victim and her brother. The boy further stated that the pellet gun looked like a black handgun.

Thereafter, in its February 8, 2005 memorandum of decision, with respect to the fourth count, the court found the respondent guilty of breach of the peace in the second degree and adjudicated him as a delinquent. The court, however, found the respondent not guilty of the remaining three counts.⁴ The court also ordered the respondent to participate in a predispositional study and to return to court at a later date. At the dispositional hearing on April 5, 2005, the court discharged the respondent without further obligation to the court.⁵ Additional facts and procedural history will be set forth where necessary. This appeal followed.

As a threshold matter, we must determine whether we are precluded from reviewing the respondent's claims because they are moot. The petitioner argues that the respondent's appeal from the judgment of the court adjudicating the respondent as a delinquent is moot because the respondent cannot receive any direct practical relief from this court. We disagree with the petitioner and conclude that this appeal is not moot.

Mootness implicates subject matter jurisdiction, and, therefore, we will not review claims that are moot. In re Darien S., 82 Conn. App. 169, 173, 842 A.2d 1177, cert. denied, 269 Conn. 904, 852 A.2d 733 (2004). "[T]he test for determining mootness is not [w]hether the [respondent] would ultimately be granted relief . . . . The test, instead, is whether there is any practical relief this court can grant the [respondent]. . . . If no practical relief can be afforded to the parties, the appeal must be dismissed." (Citation omitted; internal quotation marks omitted.) State v. Fabricatore, 89 Conn. App. 729, 743, 875 A.2d 48, cert. granted on other grounds, 275 Conn. 902, 882 A.2d 678 (2005). "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754, 826 A.2d 156 (2003).

In the present case, the petitioner argues that because the court discharged the respondent from further obligation to the court and did not place him on probation or commit him to the department of children and families, this appeal is moot as direct practical relief is unavailable. The petitioner contends that if this court were to reverse the judgment of the trial court, which adjudicated the respondent as a delinquent, we would be unable to afford any practical relief to the respondent. We disagree with the petitioner.

We find illustrative the case of In re Juvenile Appeal (82-AB), 188 Conn. 557, 559-60, 452 A.2d 113 (1982), in which our Supreme Court held that a respondent's appeal was not moot where the Juvenile Court had found the respondent to be delinquent and, thereafter, had dismissed the respondent with a warning. Our Supreme Court noted that Practice Book § 1062, which was predicated on General Statutes § 51-327, discussed the erasure of police and court records of delinquent juveniles.⁶ Id. The automatic erasure of a juvenile's police and court records, however, is dependent on the court's determination of the juvenile matter. Id., 560. For example, if the court dismissed the charge filed against the juvenile, then the police and court records concerning the juvenile matter are erased automatically and such erasure is mandatory. Id. On the other hand, if the juvenile is adjudicated as a delinquent and dismissed from further accountability to the court, then erasure occurs only upon the court's receipt of a petition on behalf of the juvenile, provided that the other statutory conditions are satisfied. Id. Our Supreme Court concluded that the "respondent [was] entitled to challenge the propriety of his adjudication of delinquency . . . ." Id.; see also In re Juvenile Appeal (83-EF), 190 Conn. 428, 429 n.1, 461 A.2d 957 (1983).

In the present case, as in In re Juvenile Appeal (82-AB), supra, 188 Conn. 560, the court discharged the respondent from further accountability to the court. Although the court disposed of the matter by discharging the respondent from further obligation, the...