State v. Brunette

Decision Date29 November 2005
Docket Number(AC 25315).
Citation886 A.2d 427,92 Conn. App. 440
CourtConnecticut Court of Appeals
PartiesSTATE OF CONNECTICUT v. SAMUEL BRUNETTE.

Dranginis, Gruendel and Freedman, Js.

David V. DeRosa, special public defender, for the appellant (defendant).

Melissa Streeto Brechlin, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (state).

Opinion

GRUENDEL, J.

The defendant, Samuel Brunette, appeals from the judgment of the trial court finding him in violation of the conditions of his probation, revoking his probation and sentencing him to three years incarceration, all pursuant to General Statutes § 53a-32.1 On appeal, the defendant claims that the court improperly (1) found him criminally culpable for threatening in the second degree and breach of the peace in the second degree in determining that he violated a condition of his probation, (2) considered his discharge from sexual offender treatment in determining that his probation should be revoked and (3) neglected to notify him of the alleged violations of probation in violation of his due process rights. We disagree and, accordingly, affirm the judgment of the trial court.

On November 20, 1998, the defendant pleaded guilty to sexual assault in the second degree in violation of General Statutes § 53a-71 (a).2 In accordance with the plea, the court sentenced the defendant to a total term of six years imprisonment, execution suspended after fifteen months, and ten years probation. A special condition of the defendant's probation was that he attend sex offender evaluation and treatment.

The defendant began his probation on February 18, 2000, residing with his parents and siblings. The defendant's wife and their three children lived in a separate residence. On the morning of September 4, 2003, the defendant appeared at his wife's residence in connection with the repossession of her television.

The wife previously had entered into a written lease agreement with Rent-A-Center, Inc., for the television, which provided that if she failed to make timely payments, Rent-A-Center, Inc., retained the right to repossess it.3 When she defaulted under the lease agreement, Rent-A-Center, Inc., sent her letters demanding that she return the television. The defendant called Rent-A-Center, Inc., and spoke with the manager in order to come to an agreement about the television. According to the defendant's wife, the defendant and the manager agreed that she would return the television and that Rent-A-Center, Inc., would provide a letter crediting her with the amount of money that she already had paid toward it.4 As part of the agreement, Rent-A-Center, Inc., would repossess the television at 10 a.m. on September 4, 2003.

On the morning of September 4, 2003, two Rent-A-Center, Inc., employees, Julio Rivera and Anthony DoCarmo, were late in arriving at the wife's residence. In the interim, she had fallen asleep with two of her children while putting them down for their naps. The court credited Rivera's testimony that he and DoCarmo had knocked on the front door, received no answer and then proceeded to the back door where they were met by the defendant. The defendant allowed Rivera and DoCarmo to go into the living room to repossess the television. The wife claimed that the defendant was not in her apartment on the morning of September 4, 2004. Rather, she asked a neighbor to call her husband after awakening from her nap, coming downstairs and seeing Rivera and DoCarmo in her living room.

After discovering Rivera and DoCarmo, the defendant's wife demanded to know if the men had brought the letter of credit. When Rivera responded that they had not, she told them they would have to get such a letter before she would hand over the television. Rivera and DoCarmo explained to her that she did not need a letter of credit because the credit she demanded already was part of the company policy of Rent-A-Center, Inc.5 Rivera and DoCarmo continued to unplug cables from the television at which point she asked the men to leave her apartment.

The defendant appeared in the living room with a pit bull dog on a leash and goaded the dog in a threatening manner toward the two men. Rivera told the defendant that he would call the police if the defendant continued that course of conduct. The defendant responded, "Go ahead, call the police," whereupon Rivera dialed 911. While Rivera was on the telephone, the defendant grabbed him from behind and pushed him out of the front door. Soon thereafter, Steven Flaherty, an officer with the Waterbury police department, arrived at the apartment and arrested the defendant on two counts of assault and one count each of breach of the peace and threatening. Flaherty also notified the defendant's probation officer, George N. Tzepos, who then applied for a warrant for the defendant's arrest on a charge of violation of probation.

At the first phase of the defendant's probation revocation hearing, the court found by a preponderance of the evidence that the defendant had committed threatening in the second degree and breach of the peace in the second degree.6 The court found that the testimony of Rivera was credible, that the defendant had used the dog in a threatening manner and that the defendant had no right to defend his wife because neither she nor the children were being threatened. The court thus determined that the defendant had violated the law without justification and therefore had violated his probation. At the second phase of the defendant's probation revocation hearing, the court determined that he had not complied with sex offender treatment and, thus, the beneficial purposes of his probation were no longer being served. Accordingly, the court revoked the defendant's probation and sentenced him to three years incarceration.

As a preliminary issue, we note that the record before us is inadequate and that we therefore may decline to review the claims raised on appeal.7 See Practice Book § 64-1. In cases in which the requirements of Practice Book § 64-1 have not been followed, this court has declined to review the claims raised on appeal due to the lack of an adequate record. See New Haven Savings Bank v. Mongillo, 67 Conn. App. 799, 801-802, 789 A.2d 547 (2002). Nonetheless, this court may review an appellant's claim as long as there exists "a sufficiently detailed and concise statement of the trial court's findings." Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.1, 751 A.2d 394 (2000). Here, the defendant filed an unsigned transcript of the court's ruling that provides a sufficiently detailed and concise statement of the court's finding for us to review his claims.

I

The defendant first claims that the court improperly determined that he violated a condition of his probation. One of the general conditions of the defendant's probation was that he not violate any criminal law of the United States, this state or any other state or territory. The defendant's probation violation was premised on his arrest on charges of threatening in the second degree and breach of the peace in the second degree in violation of General Statutes §§ 53a-628 and 53a-181,9 respectively. The defendant, however, contends that because Rivera and DoCarmo were criminal trespassers, the court improperly concluded that he was not justified in using reasonable force in defense of his wife's premises. We disagree.

"A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing." (Citations omitted; internal quotation marks omitted.) State v. Hill, supra, 256 Conn. 412, 425, 773 A.2d 931 (2001).

We first review whether the court properly found that the defendant violated a condition of his probation. "A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) Id., 425-26.

The defendant relies on General Statutes § 53a-20, which permits the use of reasonable force by a person who is privileged to be on the premises and who "reasonably believes [such force] to be necessary to prevent or terminate the commission . . . of a criminal trespass . . . ."10 In order for that section to apply in this case, the victims, Rivera and DoCarmo, would need to have been criminal trespassers pursuant to General Statutes §§ 53a-107, 53a-108 and 53a-109.11 The court concluded, to the contrary, that Rivera and DoCarmo were not on the premises as criminal trespassers.

The question of whether Rivera and DoCarmo were criminal trespassers is one of fact for the trial court to determine. See State v. Garrison, 203 Conn. 466, 473, 525 A.2d 498 (1987) (noting that court's conclusion that victim was not criminal trespasser was based on factual findings).12 The court's determination that Rivera and DoCarmo...

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