State v. Golodner, No. 18826.

Decision Date12 June 2012
Docket NumberNo. 18826.
Citation305 Conn. 330,46 A.3d 71
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut, v. Daniel Jay GOLODNER.

OPINION TEXT STARTS HERE

Jon L. Schoenhorn, with whom, on the brief, was Mathew C. Sorokin, Hartford, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Christa L. Baker, deputy assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

EVELEIGH, J.

The defendant, Daniel Jay Golodner, was convicted, following a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a–167a,1 and two counts of reckless endangerment in the second degree in violation of General Statutes § 53a–64, 2 in connection with a dispute over a neighbor's attempt to have their common property boundary surveyed. The defendant was acquitted on the remaining charges of two counts of reckless endangerment in the first degree in violation of General Statutes § 53a–63, and one count of assault of public safety personnel in violation of General Statutes § 53a–167c (a)(1). The trial court imposed a total effective sentence of three years incarceration, suspended after six months, followed by three years probation. On appeal,3 the defendant claims that the trial court improperly: (1) denied his motion to dismiss because that court improperly interpreted General Statutes § 52–557 o as granting surveyors a right to trespass onto his property over his objection; (2) violated his constitutional right to present a defense by refusing to allow him to present evidence in support of his argument that the police officers were acting outside the scope of their duties when they escorted surveyors onto his property over his objection; (3) violated his constitutional right to present a defense by refusing his request to charge the jury on the defense of entrapment; and (4) denied his motion to dismiss the second charge of reckless endangerment for violation of the statute of limitations. Although we disagree with the first three claims, we conclude that the trial court improperly denied the defendant's motion to dismiss the second charge of reckless endangerment. Accordingly, we affirm the judgment in part and reverse the judgment in part with respect to the conviction on the second charge of reckless endangerment and remand the case to the trial court for resentencing.

The jury reasonably could have found the following facts. On the morning of August 22, 2008, Eric Brown and Justin Fisher, field surveyors, were employed by John Paul Mereen, a licensed surveyor, to take measurements for a property survey in New London on behalf of Eric Pellot. Pellot had hired Mereen to identify the boundaries of his property as a result of a dispute with the defendant regarding the fence line separating their respective properties. Brown went to the defendant's home to inform him of the land survey and the need to cross over onto his side of the fence in order to complete the survey. Initially, the defendant agreed to permit Brown and Fisher to enter the property on his side of the fence, but quickly reversed course and refused permission to enter. The defendant stated that he did not want Fisher and Brown on his property, and asked them to leave. Fisher and Brown continued with their measurements by standing on Pellot's side of the fence and dangling a piece of their surveying equipment over the fence in order to locate the stone markers designating the corners of the defendant's property. The defendant continued to request that Fisher and Brown leave his property and threatened to call the police. Consequently, Brown and Fisher ceased taking measurements. Neither Brown nor Fisher were licensed surveyors, and Mereen did not go to the location himself.

Thereafter, the defendant telephoned the New London police. At approximately 9:10 a.m., police headquarters dispatched Sarah Starkey and Genaro Velez, New London police officers, to the scene. Sergeant Todd Bergeson, who was supervising street patrols at the time, also drove to the scene. Upon the officers' arrival, Brown and Fisher apprised the officers of the fence line dispute and described their job of taking measurements in connection with the dispute. The defendant informed the police that Brown and Fisher did not have permission to be on his property and he wanted them removed because they were trespassing. In response, Brown and Fisher showed the officers their identification and “surveyor's rights” cards displaying the text of § 52–557 o regarding an action for trespass against a person entering onto land at the direction of a licensed surveyor.4 Bergeson and Starkey examined the cards and concluded that Fisher and Brown were authorized under the statute to trespass in order to complete their measurements. Bergeson then informed the defendant that he was “escorting [Fisher and Brown] onto [the defendant's] property whether he like[d] it or not.” The defendant informed Bergeson that he had no right to bring Fisher and Brown onto his property. Bergeson replied that the aforementioned statute gave them that right. The officers also ordered the defendant into his house, and he complied while threatening to telephone their shift commander and to sue Bergeson. Bergeson had received training on the rights of surveyors, and had learned that surveyors were permitted to trespass, and he and Starkey had relied upon this information in explaining to the defendant that the surveyors were entitled to be on his side of the fence.

While in his house, the defendant did telephone 911 for a second time, was given the direct telephone number of the shift commander, Sergeant Kevin McBride, and spoke to McBride. Starkey and Velez walked with Fisher down the defendant's driveway, following the disputed fence, to a rear corner boundary marker. The officers then walked back up the driveway. The defendant then came out of the back of his house and started yelling at Fisher, which prompted Bergeson to direct Starkey to return to Fisher's side. Starkey ran down the driveway and interposed herself between Fisher and the defendant. The defendant then entered his van, started the engine, put his foot on the gas and “floored” it, then put the van into drive and drove the van with its tires squealing directly at Starkey and Fisher. The defendant then slowed the van down, but did not come to a complete stop, and resumed driving it at Fisher and Starkey. Fisher and Starkey took several steps backward and out of the way of the oncoming van, which stopped close to the fence.

After the defendant's van came to a stop, Bergeson ordered Starkey to arrest the defendant. Starkey opened the driver's side door of the van, informed the defendant that he was under arrest, reached inside and put the van in park. The defendant then kicked Starkey in the chest and closed the van door on her person. Starkey ordered the defendant to get out of the van and, when he refused, and reached inside the van and attempted to pull him out as he held on to the van's steering wheel. The defendant “cocked [his hand] back to swing” at Starkey, and she “took her swing” and hit him in the face. Bergeson told the defendant to stop resisting and that he was under arrest. Bergeson threatened to taser the defendant, who then exited the van and ran away in the direction of his home.

Bergeson chased after the defendant and caught him, put him in a bear hug and took him to the ground on the second attempt. Bergeson and Starkey continued to struggle with the defendant for “about a minute” before they were able to subdue him. Consequently, the defendant was arrested and transported to the police department. After a jury trial, the defendant was convicted of two counts of interfering with an officer in connection with his actions against Starkey and Bergeson, and two counts of reckless endangerment in the second degree in connection with his actions against Starkey and Fisher. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion to dismiss pursuant to General Statutes § 54–565 and State v. Kinchen, 243 Conn. 690, 703–704, 707 A.2d 1255 (1998). Specifically, the defendant claims that the criminal charges are fundamentally unfair, and therefore constitute a violation of due process of law, because in his view the police acted well outside the scope of their duties by actively assisting an unlawful entry onto his property after he sought their assistance with removing trespassers. In response, the state argues that denial of the motion to dismiss was proper because the defendant does not have the right to commit a crime in resistance to a police entry, illegal or not, and therefore no cognizable claim under the principles of due process would warrant dismissing the prosecution against him. Additionally, the state contends that, even if the defendant had the right to commit a crime in resistance to an illegal entry by police, the defendant did not prove that an entry on his property ever occurred, and that, even if the trial court found that a trespass had occurred, § 52–557 o authorized the field surveyors' entry onto the defendant's land if necessary to conduct a survey for the adjacent property owner. We conclude that the trial court properly declined to dismiss the case on the ground of due process.

We begin by noting the standard that this court applies in reviewing a trial court's ruling on a motion to dismiss. “A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477–78, 964 A.2d 73 (2009). [This court's] review of the...

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