State v. Ciullo

• Citation: 59 A.3d 293,140 Conn.App. 393
• Decision Date: 29 January 2013
• Docket Number: No. 32550.,32550.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Pasquale E. CIULLO.

140 Conn.App. 393

59 A.3d 293

STATE of Connecticut

v.Pasquale E. CIULLO.

No. 32550.

Appellate Court of Connecticut.

Argued Sept. 7, 2012.

Decided Jan. 29, 2013.

Herald Price Fahringer, pro hac vice, with whom were Edward J. Gavin and Erica T. Dubno, pro hac vice, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and James Bernardi, supervisory assistant state's attorney, for the appellee (state).

ALVORD, ESPINOSA and BISHOP, Js.

BISHOP, J.

The defendant, Pasquale E. Ciullo, appeals from the judgment of conviction, rendered following a jury trial, of three counts of unlawful restraint in the first degree in violation of General Statutes § 53a–95. The defendant claims that (1) the trial court improperly instructed the jury on the elements of unlawful restraint, self-defense and the defense of property, and marshaled the evidence in favor of the state; (2) there was insufficient evidence to prove that he had committed the crime of unlawful restraint in the first degree; (3) prosecutorial impropriety deprived him of a fair trial; (4) the court abused its discretion with respect to alleged juror misconduct; and (5) the court improperly precluded him from entering a surveillance videotape into evidence and from eliciting certain testimony of a witness. We agree with the defendant that there is insufficient evidence as to one of the counts of unlawful restraint, but disagree as to the rest of his claims. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant owned and rented out a house located at 172 Byram Shore Road in Greenwich. In May, 2007, the defendant and his neighbor, Rose Pinchuk, were involved in a dispute over a stone wall and pillars that border their two properties. This dispute resulted in the use of attorneys and a survey being conducted to determine the exact location of the defendant's property line.

On July 4, 2007, Pinchuk drove to Port Chester, New York, and hired two day laborers, Victor Illescas and Job Diaz, and drove them to her house. Pinchuk directed Diaz and Illescas to install a fence, which followed her home's property line and continued into the driveway of the defendant's house. Pinchuk supplied Illescas and Diaz with the materials and tools necessary for the fence extension, including a pickax, shovel, rake and iron bar. Pinchuk and the defendant's neighbor, Martin Hyman, observed the laborers digging holes in the driveway, and Hyman called the defendant's place of residence for the purpose of reporting these happenings. When the defendant's son, Angelo Ciullo, answered the telephone at the defendant's home, Hyman informed him of the fence construction, and urged him to call the police due to the property damage he believed was being caused by the work of Illescas and Diaz.

After receiving this telephone call, the defendant and his son drove a pickup truck to the defendant's house on Byram Shore Road and brought the truck to a sudden stop where Illescas and Diaz were working in close proximity to each other. The defendant and Angelo Ciullo left the truck, drew Walther PPK semiautomatic pistols from their holsters and began yelling at the laborers. During these initial moments of the confrontation, the defendant pulled back his pistol's slide, chambering a bullet, and he and Angelo Ciullo pointed their pistols at Illescas. The defendant and his son then approached Illescas, and the defendant grabbed Illescas by the neck, pointed his pistol at Illescas' head and ordered him to sit down. While Diaz initially ran behind Pinchuk, who was standing twelve to thirteen feet away and was calling 911 on her cell phone, he soon halted and sat down after Angelo Ciullo pointed his pistol at him. When Pinchuk screamed and ran away, the defendant instructed Angelo Ciullo to hold Illescas and Diaz together as he picked up a shovel and chased after Pinchuk along Byram Shore Road to a stone patio around the back of a neighboring house where Pinchuk fell to the ground.

When the police arrived at the scene, they encountered the defendant and Angelo Ciullo standing near Illescas and Diaz. The defendant told the police that he had instructed the laborers to stop working on his property, that he and Pinchuk had previously disagreed over the boundary separating their property and that Pinchuk had been present when they arrived at the scene but had run away. The police located Pinchuk lying on the steps of the backyard patio of the house where she had run while being pursued by the defendant. On examination, the police discovered that she had a lacerated left palm and bruising on her legs. A subsequent police search of the defendant's pickup truck revealed that a wooden billy club and baseball bats were stored in the cab of the truck. The police then arrested the defendant and Angelo Ciullo.¹

The state charged the defendant by way of an amended information with three counts of unlawful restraint in violation of § 53a–95, one count of assault in the first degree in violation of General Statutes § 53a–59 (a)(1) and one count of illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29–38(a). The court instructed the jury on assault, unlawful restraint and the weapon charge. The court also instructed the jury, at the defendant's request, on the law regarding the defense of premises and self-defense. Following deliberations, the jury found the defendant guilty of three counts of unlawful restraint but not guilty of the assault charge and the weapon charge. The trial court, after accepting the jury's verdict, sentenced the defendant to concurrent terms of five years incarceration on the unlawful restraint charges for a total effective sentence of five years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant's claim challenging the sufficiency of the evidence at trial to sustain his conviction of three counts of unlawful restraint in the first degree in violation of § 53a–95² because he would be entitled to a judgment of acquittal were he to succeed on that claim. See, e.g., State v. Monahan, 125 Conn.App. 113, 118 n. 7, 7 A.3d 404 (2010), cert. denied, 299 Conn. 926, 11 A.3d 152 (2011); State v. Bereis, 117 Conn.App. 360, 364–65, 978 A.2d 1122 (2009); see also State v. Plourde, 208 Conn. 455, 457, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989).

Specifically, the defendant argues that there was no evidence that he restrained any of the victims or that his behavior exposed any of them to a substantial risk of physical injury. We begin this section with a discussion of the law regarding sufficiency of the evidence before turning to an assessment of the defendant's claims as they relate to each of the three victims.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Pond, 138 Conn.App. 228, 234–35, 50 A.3d 950, cert. granted on other grounds, 307 Conn. 933, 56 A.3d 714 (2012).

To establish that the defendant unlawfully restrained persons in violation of § 53a–95 (a), the state was required to prove beyond a reasonable doubt that he “restrain[ed] another person under circumstances which expose[d] such other person to a substantial risk of physical injury.” General Statutes § 53a–95 (a). “To convict a defendant of unlawful restraint in the first degree, no actual physical harm must be demonstrated; the state need only prove that the defendant exposed the victim to a substantial risk of physical injury.” (Internal quotation marks omitted.) State v. Cotton, 77 Conn.App. 749, 776, 825 A.2d 189, cert. denied, 265 Conn. 911, 831 A.2d 251 (2003).

At the outset, we note that the defendant makes a sufficiency claim that has bearing on his conviction regarding all three victims. The defendant asserts that the state's evidence is insufficient because there was evidence from him and Angelo Ciullo that they did not unholster their weapons in contrast to the state's evidence that they did. Therefore, on the basis of his dispute as to the state's inculpatory evidence, the defendant asserts that the evidence that he and his son unholstered and pointed their weapons was insufficient to prove the element of unlawful restraint regarding the risk of substantial injury to a victim. Here, the defendant asks this court, on review, to perform the jury's function. “[E]vidence is not insufficient [merely] because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible.... It is the [fact finder's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.... The [fact finder] can ... decide what—all, none, or some—of a witness' testimony to accept or reject.... As a corollary, [q]uestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... Our review of factual...