State v. Ciotti

• Citation: 387 A.2d 546,174 Conn. 336
• Court: Supreme Court of Connecticut
• Decision Date: 28 February 1978
• Parties: STATE of Connecticut v. John CIOTTI.

Page 546

387 A.2d 546

174 Conn. 336

STATE of Connecticut v. John CIOTTI.

Supreme Court of Connecticut.

Argued Jan. 5, 1978.

Decided Feb. 28, 1978.

Walter H. Scanlon, Asst. State's Atty., with whom was Bradford J. Ward, Asst. State's Atty., for the appellant (state).

Gary L. Broder, Waterbury, with whom, on the brief, was James P. Caulfield, Waterbury, for the appellee (defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

PER CURIAM.

The defendant was charged with committing the crime of rape in the first degree on or about May 19, 1973, in violation of § 53a-72 of the General Statutes, ¹ and on a trial to a jury was found not guilty. Prior to the final arguments in the case, the state submitted a written request that the court charge the jury on the elements of rape in the second degree as a lesser included offense. The court refused the request and with the permission of the court the state appealed from the judgment. The sole issue on the appeal is whether the court erred in refusing to give a charge on rape in the second degree as a lesser offense included in the offense of rape in the first degree.

We have had recent occasion frequently to consider the circumstances under which the violation of a criminal statute is a lesser offense included in the violation of another offense. In State v. Brown, 163 Conn. 52, 61, 301 A.2d 547, 553, we discussed the three approaches which courts have taken in making such a determination and concluded: "The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an included crime. . . . In other words, to require an instruction on a lesser included offense, the lesser offense must not require any element which is not needed to commit the greater offense in the manner alleged in the information or bill of particulars." We have reaffirmed the application of this test in several cases, most recently in State v. Neve, 174 Conn. 142, 145, 384 N.E.2d 332; and State v. Troynack, 174 Conn. 89, 97, 384 N.E.2d 326. We are not convinced by the arguments of the state that any other test should be substituted for that approved in State v. Brown, supra, and thereafter followed consistently.

In the present case, there was no bill of particulars and the information was in short form, merely charging that on the date specified the defendant "did commit the crime of rape, 1st Deg., in violation of Sec. 53a-72 of the General Statutes." Applying the approved test, the inquiry must be whether it is...