State v. DiBella

Decision Date30 December 1968
Citation157 Conn. 330,254 A.2d 477
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Anthony F. DiBELLA et al.

Wallace R. Burke, Hartford, with whom, on the brief, were William J. Shea, Jr., and Robert J. Kelleher, for appellant (defendant DiBella).

Morton C. Hansen, Jr., Simsbury, with whom, on the brief, were Joseph J. Fauliso and Morton N. Katz, Hartford, for appellant (defendant Amaio).

Arnold Markle, Special State's Atty., for appellee (State).


ALCORN, Associate Justice.

The defendants Anthony F. DiBella and Alfred J. Amaio were informed against, along with three other persons who are not involved in this appeal, on the charge of conspiracy. General Statutes § 54-197. They were convicted after a jury trial and have appealed from the judgment rendered on the verdict. The defendant Amaio advanced eighteen, and the defendant DiBella advanced twenty-tow, assignments of error. We treat as abandoned the many claims of error which are not briefed. State v. Miller, 154 Conn. 622, 624, 228 A.2d 136. Among the assignments of error which are pursued in the briefs, four are asserted by both defendants. In addition to these four, the defendant Amaio alleges five additional claims of error in which the defendant DiBella does not join, and the defendant DiBella states two claims in which the defendant Amaio does not join. The resulting eleven assignments of error thus variously presented form the issues on this appeal.

Both DiBella and Amaio, hereinafter sometimes called the defendants, were arrested in February, 1964, pursuant to a warrant issued by a judge of the Superior Court, under the then-established procedure, without facts supported by oath or affirmation from which the judge could make an independent determination of probable cause. Each defendant claims, therefore, that his arrest was a violation of the fourth and fourteenth amendments to the constitution of the United States as laid down in State v. Licari, 153 Conn. 127, 133, 214 A.2d 900. This claim was not made by either defendant in the trial court and is raised for the first time by the assignments of error on this appeal. Essentially, the same claim was before us recently in the case of Reed v. Reincke, 155 Conn. 591, 236 A.2d 909. The present case was fully tried, and the verdict was rendered on March 11, 1965. The Licari case was decided eight months later, on November 9, 1965, and involved a claim of an illegal arrest which was asserted prior to trial. The defendants claim that their convictions now must fall because the arrest warrants by which they were brought before the court were, if the Licari case is given retrospective effect, illegal. They would invoke the rule of O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189, and State v. Vars, 154 Conn. 255, 272, 224 A.2d 744, the effect of which was to relieve accused persons of the duty of raising an issue based upon a subsequent change in a rule of law which they could not, at the time, reasonably anticipate. Such, however, was not the situation confronting the defendants in the present case. The claim now made could, and should, have been seasonably asserted by the defendants. As we pointed out in State v. Orsini, 155 Conn. 367, 378, 232 A.2d 907, the Licari case 'amounted merely to a recognition and acceptance, and, indeed, an application * * * of settled law.' It is clear that both defendants were represented by counsel and that both entered pleas to the merits on March 3, 1964, and again on November 17, 1964. As we pointed out in the Reed case, supra, 599, 236 A.2d 909, they thus submitted their persons to the jurisdiction of the court, and no way is suggested by which there was any prejudice or denial of due process of law. Consequently, under the principles we have had occasion to reiterate recently, the defendants' claim of reversible error because of the claimed defect in the arrest warrant is without merit. Reed v. Reincke, supra; State v. Orsini, supra; see also D'Amico v. Reincke, 155 Conn. 627, 629, 236 A.2d 914.

Amaio makes an additional attack on the legality of his arrest, namely, that the arresting officer did not bring him 'forthwith' before the clerk of the court as required by § 54-43 of the General Statutes. The trial court has found that Amaio was arrested on February 20, 1964. When the arrest occurred during that day does not appear. The officer's return recites that the defendants were arrested at 2:50 p.m. on February 21, 1964, and Amaio asserts that he was presented in court on that date. No other facts bearing on this issue appear, and the claimed violation of the statute is without support in the record. See State v. Darwin, 155 Conn. 124, 135, 230 A.2d 573, rev'd on other grounds, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630.

The original information, in substance, charged the defendants and the other named persons with conspiring to bribe police officers and to pervert and obstruct justice so that illegal gambling and liquor establishments could operate in certain areas, and it alleged ten overt acts in furtherance of that conspiracy. Both Amaio and DiBella moved to quash and dismiss the information on the ground that the acts alleged did not constitute the offense charged but, instead, alleged a bribery which could not be converted into the charge of conspiracy. The court concluded that, while 'ordinarily a motion to quash is directed to the information itself and not to the overt acts alleged, the futility of proceeding further on the present state of the pleadings should not be overlooked', and it granted the motion to quash. Thereupon, the state's attorney filed what was styled an amended information alleging that within the same dates and at the same places the same persons, including the defendants, conspired 'to offer money to police officers concerned in the administration of justice with intent to illegally influence the behavior of said police officers in their offices' so that illegal gambling and liquor establishments might be permitted to operated in certain counties, and then the information alleged ten overt acts in furtherance of that conspiracy. DiBella, but not Amaio, moved to dismiss the amended information and to declare it void, and the court denied the motion. DiBella assigns error in the denial of his motion on the ground that the dismissal of the original information rendered it null and void and that, consequently, it could not be amended. Other grounds were alleged in the motion, but the ground just recited is the only one on which error is assigned. Quite aside from the fact that the memorandum of the court in quashing the original information clearly indicates that the court was concerned with the allegation of overt acts rather than any deficiency in the information as a whole, it is apparent that, since the so-called amended information was complete in itself and entirely superseded the original information, it actually was, and more accurately should have been termed, a substituted information. See Wesley v. DeFonce Contracting Corporation, 153 Conn. 400, 404, 216 A.2d 811; Lancaster v. Bank of New York, 147 Conn. 566, 576, 164 A.2d 392. The so-called amended information was not only complete in itself but was not attacked by the motion on the ground that it did not sufficiently charge the crime of conspiracy. The court properly treated it as a new information which superseded its predecessor. See State v. Martin, 5 Ariz.App. 510, 514, 410 P.2d 132. The propriety, before trial, of permitting the filing of a new information after an earlier one has been quashed is generally recognized. 21 Am.Jur.2d 234, Criminal Law, § 172; 22 C.J.S. p. 660 Criminal Law § 252. Following its filing both defendants were again presented and pleaded not guilty to the offense charged in it and elected trial by a jury of twelve. The claim now made by DiBella that the court erred in denying his motion to dismiss is without merit.

Both defendants, however, now assign as error the sufficiency of what is called the amended information. Amaio launched an earlier attack by a demurrer which was overruled by the court. Although there were several grounds of demurrer, Amaio assigns error in the court's ruling only on the ground that the amended information does not allege the commission of a crime because there is no allegation which would characterize the police officers as 'being concerned in the administration of justice.' He likewise attacks the verdict on the same basic premise, namely, because there was no evidence to establish that the police officers involved were 'concerned in the administration of justice.' DiBella bases an attack on the verdict on the same contention. The lack of merit in any error thus assigned clearly appears in the brief of each defendant wherein it is argued that, in order to convict, the state was required to prove, beyond a reasonable doubt, all of the elements of the crime of bribery as defined in § 53-147 of the General Statutes. The arguments stray from the issue involved by failing to recognize that the prosecution in this case was for the crime of conspiracy under General Statutes § 54-197 and not for the crime of bribery under § 53-147.

The crime of conspiracy, at common law, is the unlawful combination and not the accomplishment of an objective or objectives whether lawful or unlawful. State v. Hayes, 127 Conn. 543, 588, 18 A.2d ,895; Fimara v. Garner, 86 Conn. 434, 437, 85 A. 670; State v. Thompson, 69 Conn. 720, 725, 38 A. 868; State v. Setter, 57 Conn. 461, 469, 18 A. 782. The commission of the crime involves an unlawful act or object but not necessarily a criminal act or object. State v. Hayes, supra; State v. Praker, 114 Conn. 354, 361, 158 A. 797. 'An unlawful act may not prove injurious to an individual or to a community when attempted by an individual, and may be readily prevented; the same act attempted...

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