State v. Indrisano

• Decision Date: 30 October 1992
• Docket Number: No. 10659,10659
• Citation: 29 Conn.App. 283,613 A.2d 1375
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Albert INDRISANO.

Page 1375

613 A.2d 1375

29 Conn.App. 283

STATE of Connecticut v. Albert INDRISANO.

No. 10659.

Appellate Court of Connecticut.

Argued June 11, 1992.

Decided Sept. 22, 1992.

Certification granted for limited

question Oct. 30, 1992.

Sally S. King, with whom, on the brief, was Leny K. Wallen-Friedman, Hartford, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom, on the brief, were Eugene Callahan, State's Atty., and Warren Murray, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

NORCOTT, Judge.

This case involves an attempt by the defendant to effect a peaceful, self-help recovery of a copy machine, which resulted in his being convicted of disorderly conduct and fined $250.

In this appeal from the judgment of conviction for violating General Statutes § 53a-182, ¹ the defendant claims that (1) the statute is unconstitutionally vague on its face and as applied to this case, (2) the evidence presented at trial was insufficient to support his conviction, (3) the trial court improperly rejected his claim of permissible use of force in defense of stolen property, and (4) the court improperly excluded certain statements on grounds of hearsay. We affirm the judgment of the trial court.

The following facts offer a rare glimpse into the trials and tribulations of the modern day "repo man." On September 26, 1988, David Andrews Printing, a Norwalk business, entered into a lease agreement with the Eaton Financial Corporation of Massachusetts for the use of a copy machine. The agreement provided, inter alia, that Eaton, as lessor, retained the right to repossess the machine in the event that Andrews defaulted on the required payments. After Andrews compiled a history of delinquent payments, Eaton gave notice in January, 1991, that the Norwalk business was again late in making payment and demanded the return of the copier. Eaton then instructed the defendant either to collect the outstanding debt or to repossess the machine. On January 22, 1991, the defendant traveled to Norwalk to carry out his instructions.

Andrews' office space included a common area shared with another tenant, Bonnie Orgovan. Andrews had placed the copy machine in this common area for its exclusive use. At 10 a.m., the defendant entered the common area and encountered Orgovan. He explained that he had come to collect the overdue payments or, alternatively, take possession of the copier. Gordon Anderson, also present in the common area, testified that the defendant entered the room waving a clipboard and that he was "very strident." Orgovan then explained to the defendant that the owners were unavailable but would return shortly. ² Orgovan resumed her work and left the defendant in the common area with Anderson and the copy machine.

The defendant then telephoned Eaton and, after receiving permission to repossess the machine, unplugged it and began dragging it backward toward the door. When Orgovan realized what the defendant was doing, she reentered the common area, demanding that he await the return of Andrews' owners. Moreover, she positioned herself between the defendant and the door, which she locked, to prevent him from leaving with the copier. At this point, the defendant exclaimed, "God damn, I don't have to wait. God damn it!" Directing his attention to Anderson, the defendant said, "You, old man, stay out of this." Determined to leave, however, the defendant physically wedged Orgovan away from the door by using his shoulders and buttocks. As soon as this physical contact ensued, Anderson called the police and the confrontation immediately ceased. ³ The entire incident lasted about ten minutes.

In resolving this matter, we note that the right to peaceful, self-help repossession of goods has a long history in the common law. See generally J. McCall, "The Past as Prologue: A History of the Right to Repossess," 47 S.Cal.L.Rev. 58 (1973). Private self-help remedies extend as far back as ancient Greece, where those entitled to seize chattels from a debtor were not prohibited from breaching the peace or physically injuring the debtor in the course of repossession. See F. Pringsheim, The Greek Law of Sale (1950) pp. 286-87 (1950). Early Roman law permitted similar self-help remedies, including the right to seize the person of a debtor, without court action, after a default in payment. See W. Buckland, A Manual of Roman Private Law (1939) p. 352. Later, the right to repossess goods was recognized in the common law of England. See 2 W. Blackstone, Commentaries (Jones Ed.1916) p. 1490 n. 2; F. Pollock & F. Maitland, The History of English Law (2d Ed.1923) p. 574.

Today, the same common law principle is embodied in General Statutes § 42a-9-503, ⁴ which permits a secured party to forgo the judicial process and resort to self-help repossession, but without breaching the peace. Enticing as this mode of recovery may be to creditors, nonjudicial repossession nevertheless presents "an element of inherent danger." Sanchez v. MBank of El Paso, 792 S.W.2d 530, 532 (Tex.App.1990). Because the repossessor may commit a trespass in attempting to recover goods without the owner's consent and, often, against his will, there is a considerable risk that breach of the peace, assault or other violence may occur. Id. With this brief historical background in mind, we commence our analysis.

The defendant first claims that General Statutes § 53a-182, our state's disorderly conduct statute, is unconstitutionally vague on its face and as applied to the facts of this case.

Although the defendant's vagueness challenge was not distinctly raised at trial, his claim of unconstitutional vagueness falls within the parameters of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants some appellate scrutiny. State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990). Golding review, however, will not allow the defendant to prevail because the record is inadequate for a fair consideration of whether the statute is unconstitutionally vague. ⁵ State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). We therefore decline to review this claim.

The defendant next claims that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. We disagree.

This court has consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. First, we review the evidence in the light most favorable to sustaining the jury's verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991). Reasonable and logical inferences may be drawn, but the jury may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). Each essential element of the crime must be proved beyond a reasonable doubt. Id., at 601, 583 A.2d 896.

Here, the prosecution was obligated to establish two elements under General Statutes § 53a-182: "(1) that the defendant intended to cause, or recklessly created a risk of causing, 'inconvenience, annoyance or alarm' and (2) that he did so by engaging 'in fighting or in violent, tumultuous or threatening behavior....' " State v. Leavitt, 8 Conn.App. 517, 522, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986), quoting General Statutes § 53a-182(a). As stated above, the prosecution established that the defendant resorted to cursing, screaming and physical force in attempting to remove Orgovan from the doorway and to repossess the copy machine. His alternative was to await the lessees' momentary return and then to discuss the obligations under the lease. Moreover, the defendant insisted on removing the copy machine despite being told of the owners' imminent return. On the basis of this evidence, the trial court properly concluded, beyond a reasonable doubt, that the defendant engaged in "violent, tumultuous or threatening behavior" with the intent to cause inconvenience or annoyance, or recklessly to create a risk thereof. See also State v. Duhan, 194 Conn. 347, 359-60, 481 A.2d 48 (1984) (affirming conviction under § 53a-182 based on defendant's yelling and cursing while at police station); State v. Leavitt, supra (affirming conviction under § 53a-182, where defendant yelled and screamed at daughter before inflicting physical harm).

The defendant's third claim is that the trial court abused its discretion in rejecting his claim of justification pursuant to General Statutes § 53a-21. In essence, the defendant attempts to dismiss his use of physical force as a necessary incident to what he perceived was an act of larceny on the part of Andrews. We are unconvinced.

Pursuant to § 53a-21, "[a] person is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it necessary ... to regain property which he reasonably believes to have been acquired by larceny...." To support his claim of legal justification, the defendant invokes General Statutes § 53a-119(13)(A), the larceny provision of our penal code, which forbids a lessee's sale or concealment of "leased personal property" when an agreement provides express terms specifying the duration of the lease and a designated place of return. In this case, the controlling lease is devoid of either of these terms and thus is not within the express language of § 53a-119(13)(A). Thus, the terms of the lease support the trial court's decision to reject the defendant's asserted legal justification.

Moreover, the trial court found that the defendant's use of force was an unreasonable response to the actions of Orgovan. ⁶ This finding reflects the fact that Orgovan...