State v. Garuti

• Decision Date: 21 November 2000
• Docket Number: (AC 20116)
• Citation: 60 Conn. App. 794,761 A.2d 774
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. VICTOR GARUTI

60 Conn. App. 794

761 A.2d 774

STATE OF CONNECTICUT v. VICTOR GARUTI

(AC 20116)

Appellate Court of Connecticut.

Argued September 20, 2000.

Officially released November 21, 2000.

Schaller, Pellegrino and Daly, JS. Laila Mary Ghabrial, deputy assistant public defender, for the appellant (defendant).

Jessica C. Torres-Daigle, special deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kevin Murphy, assistant state's attorney, for the appellee (state).

Opinion

DALY, J.

The defendant, Victor Garuti, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction (commissioner) to serve the remaining two years and 215 days of his previously suspended sentence of incarceration. On appeal, the defendant claims that the court (1) improperly found that he had violated his probation and (2) violated his due process rights. We affirm the judgment of the trial court.

The following procedural history is relevant to this appeal. On December 8, 1997, the court sentenced the defendant to the custody of the commissioner for a term of three years, suspended after 150 days, and three years probation. The defendant's probationary period began on May 6, 1998, at which time he provided a residential address to a probation officer. During a May 14, 1998 visit to the address, the probation officer was told that the defendant did not reside there. A warrant was issued for the defendant's arrest on a charge of violation of probation. The warrant alleged that the defendant violated a condition of his probation by failing to keep his probation officer informed of his whereabouts. On July 12, 1999, the court held a two part probation revocation hearing.

At the conclusion of the hearing's evidentiary phase, the court prefaced its findings by stating, "I'm reasonably satisfied that the terms of probation have been violated and the beneficial purposes of probation [are] no longer being served." The court then found that the defendant had violated his probation because "the probation officers did not know of [the defendant's] whereabouts, did not know how to get a hold of him, and that is the violation."¹ During the hearing's dispositional phase, the defendant addressed the court and requested leniency. When the entire hearing concluded, the court revoked the defendant's probation.

I

The defendant first claims that the court improperly found that he had violated the terms of his probation because there was insufficient evidence to support such a finding. The defendant argues that because the testimony of his witness refuted the testimony of the state's witnesses, the latter were not credible. We disagree. In a probation revocation proceeding, the state bears the burden of proving by a preponderance of the evidence that the defendant violated the terms of his probation. State v. Daniels, 248 Conn. 64, 74, 726 A.2d 520 (1999). We may reverse the court's finding that a defendant violated the terms of his probation only if that finding is clearly erroneous. State v. Samuel, 57 Conn. App. 64, 68, 747 A.2d 21, cert. denied, 253 Conn. 909, 753 A.2d 942 (2000); State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). "A finding of fact is clearly erroneous when there is no evidence to support it ... or ... 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.) State v. Rollins, 51 Conn. App. 478, 482, 723 A.2d 817 (1999). This court defers to the trial court's discretion in matters of determining credibility and the weight to be given to a witness' testimony. See Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).

During the evidentiary phase of the defendant's probation revocation hearing, the state entered four documents into evidence and presented four witnesses. One of the witnesses was the probation officer who conducted the May 14, 1998 visit to the address the defendant gave as his residence. The probation officer testified that he was unable to contact the defendant directly by telephone or in person. The probation officer also testified that when he went to the address that the defendant had given, a woman there told him that the defendant "had never stayed at that address and that she thought that he stayed from ... girlfriend to girlfriend." That woman was the defendant's only witness. Both parties had the opportunity to cross-examine the witnesses. At the close of the hearing's evidentiary phase, the court stated, "I will not make a decision until I've looked this over." The court then recessed. When the court reconvened, it found after "review[ing] the evidence that we took here of the witnesses and the documents that I have had before me, considering the credibility.... The fact is that the probation officers did not know of [the defendant's] whereabouts, did not know how to get a hold of him, and that is the violation."

On the basis of our review of the briefs and the transcript, we conclude that there was sufficient evidence to support the court's finding that the defendant violated the terms of his probation. The court's decision was not clearly erroneous and it will not be disturbed.

II

Next, the defendant seeks review of his unpreserved due process claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id.

The defendant's claim is that the court violated his due process rights because it failed to afford him a full revocation hearing. He bases this claim on the comment that the court made at the conclusion of the hearing's evidentiary phase: "I'm reasonably satisfied that ... the beneficial purposes of probation [are] no longer being served." We have stated that "[i]n the absence of any one of [the four Golding requirements for review of an unpreserved constitutional claim] the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." State v. Atkins, 57 Conn. App. 248, 252, 748 A.2d 343, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000). We conclude that the defendant failed to establish a clear constitutional violation or that the court deprived him of a full and fair hearing. The defendant's due process claim fails the third prong of Golding.

To satisfy due process,² the defendant is entitled to a two part probation revocation hearing pursuant to General Statutes § 53a-32.³ "[A] probation revocation hearing has two distinct components.... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation." (Internal quotation marks omitted.) State v. Lockhart, 60 Conn. App. 119, 122, 758 A.2d 857 (2000). "If the trial court determines that the evidence has established a violation of a condition of probation [by a preponderance of the evidence], then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation... [and] ... require the defendant to...