State v. Golding, 5107

Decision Date03 May 1988
Docket NumberNo. 5107,5107
Citation541 A.2d 509,14 Conn.App. 272
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Monica GOLDING.

Joseph G. Bruckmann, Asst. Public Defender, with whom on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Mary H. Lesser, Sp. Asst. State's Atty., with whom, on the brief, were Alan Reisner and James G. Clark, Asst. State's Attys., for appellee (State).

Before DUPONT, C.J., and STOUGHTON and FOTI, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123(a)(4), and of general assistance fraud in violation of General Statutes § 17-282. The defendant raises the following claims on appeal: (1) her rights not to be placed in jeopardy twice under the fifth and fourteenth amendments to the United States constitution were violated by trying her for violation of two statutes which constitute a single offense; (2) Public Acts 1984, No. 84-471, which amended General Statutes § 17-282, is unconstitutionally vague; (3) the judgment of conviction for the offense of general assistance fraud was improper because the court failed to give instructions on an essential element of the offense; (4) she was deprived of her constitutional right to a unanimous jury verdict; and (5) her due process rights were violated by the order of restitution as a condition of her probation. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. On September 8, 1983, the defendant signed, under oath, a statement of her rights and responsibilities as applicant for public assistance. The first paragraph of that form states: "I agree to notify the Town Welfare Department of any changes in my income, assets and changes in any other information furnished in this application." On November 7, 1983, the defendant informed her social worker in the department of social services that eight people were living with her. As a result, her assistance was reduced from $266.65 to $33.15 per month. On December 27, 1983, after she informed the social worker that there were only three people living in her household, the defendant's monthly allotment was increased to $262.70 from that date until July 3, 1984. She also signed eligibility forms in March, May and July, 1984, which indicated that there were three occupants in her apartment and that she had no outside income. Between December 27, 1983, and July 31, 1984, the defendant failed to tell her social worker that she was receiving income from an independent source.

The benefits the defendant received from January, 1984, through July, 1984, therefore, were based on the representation that the defendant had three occupants living with her and no outside income. During that period of time, there were nine people living in the defendant's apartment. During June and July of 1984, the defendant received income from a private source in the amount of $610.50. The difference between the amount the defendant was paid by the city from January through July of 1984, and the amount she was entitled to for that period was $877.90.

The defendant received a sentence of eighteen months suspended with three years of probation on the charge of larceny, and one year suspended with three years of probation on the charge of general assistance fraud. The sentences were concurrent and there were two conditions of probation: restitution in the amount of $877.90, and 200 hours of community service.

I

The defendant's first claim is that by imposing multiple punishments for two offenses that arose from a single transaction her constitutional protection against being placed in double jeopardy was violated. The defendant was charged by information with violating General Statutes §§ 17-282 1 and 53a-123(a)(4). 2 By an amended bill of particulars, it was specified that she violated General Statutes § 17-282 when she "defrauded and assisted in defrauding the city of Hartford in obtaining support from said city." The amended bill of particulars also specified that she violated of General Statutes § 53a-123(a)(4) when, "with intent to appropriate property to herself she wrongfully obtained such property from the city of Hartford."

The double jeopardy clause of the fifth amendment to the United States constitution and article I, § 8, of the Connecticut constitution protects against multiple punishments for the same crime. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); State v. Wright, 197 Conn. 588, 592, 500 A.2d 547 (1985). "This clause ' "prohibits not only multiple trials for the same offense but also multiple punishments for the same offense. Brown v. Ohio, [supra]; State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985)...." "Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." ' (Citations omitted.) State v. Palmer, 206 Conn. 40, 51-52, 536 A.2d 936 (1988), quoting State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986).

The test for whether multiple punishments are permitted "where the same act or transaction constitutes a violation of two distinct statutory provisions ... is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). "This test is applied with reference to the bill of particulars or charging documents." State v. Trujillo, 12 Conn.App. 320, 336, 531 A.2d 142 (1987).

Larceny in the second degree requires specific intent to deprive another of property permanently. 3 State v. Raffone, 161 Conn. 117, 127-28, 285 A.2d 323 (1971); see State v. Perez, 181 Conn. 299, 435 A.2d 334 (1980). General assistance fraud does not require the permanent deprivation of property. One of the elements of general assistance fraud is that the fraudulently obtained funds be used in "support for any person not entitled to" the funds. Larceny in the second degree does not contain such an element. The amended bill of particulars in this case specifies as to the larceny count that the defendant intended to appropriate property to "herself," whereas no such requirement exists for the count of general assistance fraud. Therefore, the test for whether multiple punishments are permitted under Blockburger has been met. It is possible to commit one of the offenses in the manner described in the bill of particulars without first having committed the other offense.

Although both offenses charged in the information and described by the amended bill of particulars arose out of the same transaction, they constitute two separate offenses. Thus, the defendant may be punished for each offense without violating her constitutional protection against double jeopardy.

II

The defendant claims that General Statutes § 17-282, as amended by Public Acts 1984, No. 84-471, § 1, is unconstitutionally vague 4 because the statute does not provide for the penalty for the crime of general assistance fraud within its specific term, so that it was unclear to the defendant what penalty she could receive. In fact, the act specifically refers for the penalties for its violation to General Statutes §§ 53a-122 to 53a-125b which sections establish the penalties for larceny, depending upon the amount involved. The defendant violated the public act and became subject to the penalties it imposed. The trial court committed no error in sentencing the defendant under Public Acts 1984, No. 84-471, § 1.

III

The defendant next claims the court erred in failing to instruct the jury that they must find the precise sum involved in order to convict for general assistance fraud, in violation of General Statutes § 17-282 and Public Acts 1984, No. 84-471, § 1. The defendant neither requested a charge on the "amount involved" nor objected after the jury was instructed. She therefore seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Before an Evans review can proceed, each of the following questions must be answered affirmatively: (1) does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? (2) does a limited review of the record show that the defendant's claim is truly of constitutional proportions and not simply characterized as such by the defendant? (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant? and (4) did the deprivation deny the defendant a fair trial, thereby requiring that the conviction be set aside? State v. Foshay, 12 Conn.App. 1, 23, 530 A.2d 611 (1987); State v. Thurman, 10 Conn.App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

Although the defendant's claim that the court failed to instruct the jury adequately on an essential element of the crime charged satisfies the first requirement of Evans, her claim cannot meet the second requirement. A review of the record does not show the defendant's claim to be truly of constitutional proportions, but is simply characterized by her as such. The trial court instructed adequately as to the elements of the offense charged, which does not include the penalty provision. That penalty provision, which depends upon "the amount involved," does not change the elements of the offense.

IV

The defendant next claims that the court erred in its instructions to the jury on the element of defrauding a public community thereby depriving the defendant of a unanimous verdict on each of the two counts. Although the defendant raised no objection to the jury instruction, nor requested a different charge, we will review this claim under the Evans bypass rule. State v. Jackson,...

To continue reading

Request your trial
10 cases
  • State v. Elson, No. 31511.
    • United States
    • Connecticut Court of Appeals
    • 7 Diciembre 2010
  • State v. Mancinone
    • United States
    • Connecticut Court of Appeals
    • 19 Julio 1988
    ... ... Golding, 14 Conn.App. 272, 279-81, 541 A.2d 509 (1988) (two statutory alternatives); State v. Flynn, 14 Conn.App. 10, 36-39, 539 A.2d 1005 (1988) (two ... ...
  • State v. Elson, AC 31511
    • United States
    • Connecticut Court of Appeals
    • 7 Diciembre 2010
  • State v. Bailey
    • United States
    • Connecticut Supreme Court
    • 13 Diciembre 1988
    ... ... West, 3 Conn.App. 650, 654, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985)." State v. Benite, supra; see also State v. Golding, 14 Conn.App. 272, 279, 541 A.2d 509, cert. granted, 209 Conn. 801, 548 A.2d 439 (1988); State v. Jackson, 13 Conn.App. 288, 294, 535 A.2d 1327 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT