State Of Conn. v. Hudson
| Decision Date | 27 July 2010 |
| Docket Number | No. 30483.,30483. |
| Citation | 998 A.2d 1272,122 Conn.App. 804 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticutv.Curtis B. HUDSON. |
122 Conn.App. 804
998 A.2d 1272
STATE of Connecticut
v.
Curtis B. HUDSON.
No. 30483.
Appellate Court of Connecticut.
Argued May 21, 2010.
Decided July 27, 2010.
COPYRIGHT MATERIAL OMITTED
Sarah Hanna, assistant state's attorney, with whom, on the brief, were James C. Smriga, state's attorney, and Donal C. Collimore, Jr., assistant state's attorney, for the appellee (state).
HARPER, ALVORD and PETERS, Js.
PETERS, J.
In this appeal from the defendant's multicount conviction for credit card theft and identity theft, the state has conceded that it offered no evidence in support of three counts, which charged the defendant with credit card forgery. Accordingly, the defendant's conviction on those counts of the information must be reversed. The principal issue before us is whether, as the defendant maintains, our remand should order his sentence to be reduced by eliminating his sentence on the specific counts that we reverse or whether, as the state maintains, the case should be remanded for resentencing on the remaining counts. In light of our case law adopting the aggregate theory of sentencing, we agree with the state.
On May 19, 2008, in an eight count substitute information, the state charged the defendant, Curtis B. Hudson, with two counts of credit card theft in violation of General Statutes § 53a-128c(a), three counts of identity theft in the third degree in violation of General Statutes § 53a-129d(a) and three counts of credit card forgery in violation of General Statutes § 53a-128c(g). After a jury trial, the defendant was found guilty on all counts. The trial court accepted the jury's verdict and sentenced the defendant to a total effective sentence of fifteen years imprisonment. The court specified that the defendant would receive a one year sentence for each of the two counts of credit card theft, five year sentences each on counts three, four, and five for identity theft in the third degree and one year sentences each on counts six, seven and eight for credit card forgery. All counts were to run consecutively, except that the fifth count would run concurrently. The defendant has appealed.
The jury reasonably could have found the following facts. On January 30, 2007, the defendant entered the victim's place of employment through the employee door, claiming that he was bringing a gift to the victim. He then entered the victim's office and, without her permission, took two credit cards from her purse.
On the day of the theft, the defendant used one of the victim's credit cards to make two purchases at a liquor store totaling $273.42 and $207.98. The defendant told the store owner that the credit cards belonged to his wife.
On the following day, the defendant entered a Subway restaurant and used the victim's credit card to purchase various items totaling $8.88. While in the restaurant, his image was recorded by the restaurant's surveillance equipment.
The victim's signature did not appear on the sales receipts for any of these transactions. It is undisputed that she had not authorized the defendant's use of her credit cards.
In April, 2007, Kerry Dalling, a detective with the Fairfield police department, interviewed the defendant at a jail in Westchester, New York. The defendant orally confessed to the credit card theft. He did not, however, make a written statement, and the interview was not recorded either by audio or by video. At a later date, Dalling wrote a report describing the interview.
At trial, the defendant challenged the accuracy of Dalling's account of his interview with her. He requested a jury instruction that the jury should consider the circumstances of his confession, specifically, the lack of an electronic recording, in determining what weight to give Dalling's evidence. The court declined to so instruct the jury.
The defendant has raised three issues on appeal. He challenges (1) the validity of his conviction of credit card forgery, (2) the court's denial of his request for a jury charge on the inferences to be drawn from the state's reliance on an unrecorded confession and (3) the adequacy of the court's response to an inquiry from the jury during its deliberations. We agree, in part, with the defendant's first claim of error, but we are not persuaded by his second and third claims.
The first issue raised by the defendant's appeal is the validity of his conviction of three counts of credit card forgery in violation of § 53a-128c(g). The defendant contends, and the state agrees, that the record contains insufficient evidence to prove the elements of credit card forgery. Specifically, the record is devoid of evidence that the defendant signed the victim's credit cards, as the statute requires.
In light of the state's concession, the only question before us is a determination of the appropriate remedy for this improper conviction. The defendant argues that the reversal of this conviction requires a remand order instructing the trial court to reduce his sentence by three years to reflect his three one year sentences on the three counts of credit card forgery. The state argues, however, that the proper remedy is to remand the case to the trial court with direction to render judgment of acquittal on the forgery charges and for resentencing on the conviction of the remaining charges. We agree with the state.
This state has adopted the aggregate theory of sentencing, both for the initial sentencing of a convicted defendant and for resentencing after an order of remand. See State v. Miranda, 260 Conn. 93, 129-30, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002), and State v. Raucci, 21 Conn.App. 557, 563-64, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990). Under this theory, “[w]e recognize that when a trial court imposes sentence pursuant to a multicount conviction, its intent ordinarily is to structure the sentences on the various counts so as to arrive at a total effective sentence that it deems appropriate for both the crimes and the criminal. We adopt this ‘aggregate package’ view for resentencing, either following a remand from a direct appeal or pursuant to Practice Book § 935 [now § 43-22], recognizing the power of the court to fashion the new sentence so as to conform to its original sentencing intent.” (Emphasis added.) State v. Raucci, supra, at 563, 575 A.2d 234.
The defendant argues that Miranda and Raucci are distinguishable because those cases involved a defendant's direct challenge of the legality of the sentence imposed on him at trial. By contrast, in the present case, he has successfully challenged the sufficiency of the evidence to convict him of the underlying charge. We are not persuaded.
The defendant cites no authority, and our research reveals...
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...appeal which, while not preserved at trial, at least was not waived at trial." (Internal quotation marks omitted.) State v. Hudson , 122 Conn. App. 804, 813, 998 A.2d 1272, cert. denied, 298 Conn. 922, 4 A.3d 1229 (2010). "[A] constitutional claim that has been waived does not satisfy the t......
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