State v. Desimone

CourtSupreme Court of Connecticut
Citation241 Conn. 439,696 A.2d 1235
Decision Date01 July 1997
Docket NumberNo. SC,SC
PartiesSTATE of Connecticut v. Jack J. DESIMONE. 15567.

Lawrence J. Tytla, Assistant State's Attorney, with whom, on the brief, was Kevin T. Kane, State's Attorney, for appellee (State).


PALMER, Associate Justice.

A jury convicted the defendant, Jack J. Desimone, of larceny in the first degree by receiving various items of stolen property in violation of General Statutes §§ 53a-122 and 53a-119 (8), 1 and larceny in the fourth degree by receiving certain other items of stolen property in violation of General Statutes Following an investigation into the disappearance of certain items of personal property from Pfizer, Inc. (Pfizer), in Groton, the defendant was charged in two separate cases with larceny in the first degree; State v. Desimone, Superior Court, judicial district of New London, Docket No. CR940219155 (June 16, 1995) (hereinafter Docket No. 219155); and larceny in the second degree. State v. Desimone, Superior Court, judicial district of New London, Docket No. CR940219154 (June 16, 1995) (hereinafter Docket No. 219154). Prior to trial, the state filed a substitute information in Docket No. 219154 reducing the charge from larceny in the second degree by receiving stolen property to larceny in the third degree by receiving stolen property in violation of General Statutes §§ 53a-124 5 and 53a-119 (8). In addition, the state moved that the two cases be consolidated for trial. The trial court granted the state's consolidation motion, and a joint trial on the two informations commenced

                §§ 53a-125 2 and 53a-119 (8).  On appeal, 3 the defendant claims that the trial court improperly failed to instruct the jury under General Statutes § 53a-121 (b) 4 that in determining the degree of the crime of larceny by receiving stolen property, the value of multiple items of allegedly stolen property may be aggregated only if the state has established that the defendant received the property pursuant to one scheme or course of conduct.  We agree with the defendant and, therefore, we reverse the judgment of conviction
                on May 30, 1995.  At the conclusion of the trial, [241 Conn. 443] the jury convicted the defendant of larceny in the first degree by receiving stolen property as charged in Docket No. 219155.   The jury acquitted the defendant of third degree larceny in Docket No. 219154, but convicted him of the lesser included offense of larceny in the fourth degree. 6

The evidence adduced at trial may be summarized as follows. Between January, 1993, and January, 1994, several items of property were reported missing from Pfizer, where the defendant was employed as a maintenance mechanic. 7 These items included three Compaq laptop computers, one Dell desktop computer system, one Toro snowblower, three power tools and one utility cart. As described more fully hereinafter, the evidence established that each of these items had been in the defendant's possession after Pfizer had reported the loss of the property.

A Docket No. 219154

In February, 1994, Philip Schena, a Pfizer employee, informed his supervisor that the defendant had asked him if he was interested in buying a Dell desktop computer system for $500. Schena told the defendant that he was interested in purchasing the computer system, and they arranged a time for Schena to examine the system at the defendant's home at 75 Oslo Street in Mystic. After examining the computer system, Schena, who had also reviewed some literature about the system that had been provided to him by the defendant, contacted a Dell customer service representative regarding certain additional questions that he had about the system's operation. When Schena provided the identification number of the computer system to the Dell representative, he was informed that that system had been reported missing by Pfizer. Schena promptly reported this information to his supervisor at Pfizer, and Pfizer authorities in turn provided the information to the Groton police department. Detective Thomas Smith of that department was assigned to investigate the matter.

Smith, posing as a prospective purchaser, contacted the defendant and inquired as to whether the Dell computer system was still for sale. Upon learning that the system was still available, Smith obtained a search warrant for the defendant's 75 Oslo Street residence. The Groton police executed the search warrant on April 5, 1994, and seized the missing Dell computer system from the defendant's residence. The police also seized a utility cart, a Black and Decker drill, a Black and Decker jigsaw, a Milwaukee hammer drill, and a Toro snowblower. 8 All of the seized items, except the snowblower, bore identification as Pfizer property. The alleged theft of these items provided the basis for the information in Docket No. 219154 charging the defendant with larceny in the third degree by receiving stolen property.

At trial, the defendant disputed the state's contention that the items had been stolen. The defendant attempted to show that the Toro snowblower seized from the 75 Oslo Street residence was not the same snowblower that had been reported missing from Pfizer. Specifically, he presented the testimony of his wife and neighbor for the purpose of establishing that the Toro snowblower seized from the defendant's home had been in the defendant's possession prior to the date that the snowblower had disappeared from the Pfizer premises. 9 In addition, although a Pfizer building services supervisor testified that he believed that the snowblower seized by the police was in fact the snowblower that Pfizer had reported missing, he admitted that he could not "say with one hundred percent accuracy" that they were one and the same.

The defendant also claimed that he had not stolen the power tools and the utility cart but, rather, that he had borrowed them so that he could use them on several home repair projects. In support of this claim, the defendant presented evidence that Pfizer policy permits a maintenance employee to take such equipment to his or her home for short periods of time. The evidence also indicated, however, that the defendant had been in possession of these items for far longer than allowed under the company policy. Smith testified about his questioning of the defendant with respect to the missing items. According to Smith, the defendant provided no information regarding the utility cart or the snowblower; he claimed that he had purchased the Dell computer system from a relative in New York whom he refused to identify; and he asserted that he had retained possession of the tools because Pfizer did not have sufficient space to store them, a claim that was refuted by the testimony of a Pfizer supervisor.

The defendant also disputed the value of the allegedly stolen items. 10 According to Gerard Keeler, a Pfizer employee, the value of the Dell computer system on or around the date of its disappearance was approximately $1000 to $1500. 11 On cross-examination, however, Keeler acknowledged that the value of "a computer depreciates very rapidly" and that because "computer technology is changing very rapidly ... computers that are one to two years old are approaching obsolescence." The defendant adduced testimony from Michael Baker, a computer systems analyst, who estimated that the value of the Dell computer system was about $800 to $900. 12 A Pfizer maintenance supervisor opined that the Black and Decker drill was worth $85 to $90, and valued the Milwaukee hammer drill at approximately $110 to $120. A Pfizer building services supervisor estimated that the Toro snowblower was at least twelve years old and worth approximately $100. No value estimates were given for the Black and Decker jigsaw or the utility cart.

B Docket No. 219155

Shortly after the seizure of the items from the 75 Oslo Street residence, Smith interviewed the defendant regarding the apparent theft from Pfizer of a Compaq Contura laptop computer and two Compaq LTE laptop computers. 13 The defendant told Smith that he was aware that the three computers were missing and, although he refused to say where the computers were located, the defendant suggested that he might be able to retrieve them within several days.

The police thereafter placed the defendant under surveillance, and observed him meet with Robert Gennotti, an employee of a health club frequented by the defendant. At the conclusion of the meeting, the police questioned Gennotti about his relationship with the defendant. According to Gennotti, the defendant had approached Gennotti in December, 1993, and explained that he could acquire laptop computers from a friend. Subsequently, in late December, 1993, the defendant sold Gennotti a Compaq Contura computer for $850. Gennotti later sold the computer through his cousin, Officer Steven Sinagra of the Groton police department, to Lieutenant John Graves of the Groton police department for $800. Evidence adduced by the state indicated that the Compaq Contura computer was one of the three laptop computers that had been reported missing by Pfizer.

In January, 1994, the defendant again approached Gennotti, showed him a Compaq LTE laptop computer, and explained that this computer also was for sale. When Gennotti indicated that he might be interested in purchasing the Compaq LTE computer, the defendant gave the computer to Gennotti so that Gennotti could try it out. Gennotti took the computer home with him and, thereafter, had Sinagra examine it. Several days later, before Gennotti had agreed to purchase the first Compaq LTE computer, the defendant informed Gennotti that he had a second Compaq LTE computer for sale. Gennotti also had Sinagra examine the second computer. 14 Gennotti and Sinagra eventually purchased both...

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