State v. Lasaga

• Decision Date: 01 June 2004
• Docket Number: (SC 16707).
• Citation: State v. Lasaga, 269 Conn. 454, 848 A.2d 1149 (Conn. 2004)
• Parties: STATE OF CONNECTICUT v. ANTONIO C. LASAGA.
• Court: Connecticut Supreme Court

269 Conn. 454

848 A.2d 1149

STATE OF CONNECTICUT v.ANTONIO C. LASAGA.

(SC 16707).

Supreme Court of Connecticut.

Argued October 20, 2003.

Officially released June 1, 2004.

Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js.

Diane Polan, with whom, on the brief, was Mary Ann Royle, for the appellant(defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David J. Strollo, senior assistant state's attorney, for the appellee(state).

Opinion

SULLIVAN, C. J.

The defendant, Antonio C. Lasaga, was convicted, following a plea of nolo contendere, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2),¹ two counts of promoting a minor in an obscene performance in violation of General Statutes § 53a-196a (1),² and two counts of risk of injury to a child in violation of General Statutes § 53-21 (2).³The defendant appeals from the judgment of conviction claiming that the trial court: (1) improperly denied his motion to suppress evidence seized during a search of his home; and (2) abused its discretion in denying his motion for a continuance to obtain new counsel.We affirm the judgment of the trial court.

The record reveals the following relevant facts.The defendant was employed by Yale University as a professor of geology and geophysics.He was also the master of Saybrook College, one of Yale's residential colleges, and resided in the Saybrook College Master's House.On October 23, 1998, Victor Sletten, a Yale graduate student, informed Paul Gluhosky, a Yale employee responsible for ensuring that the geology department computers were functioning properly, that another student, Ian McGuinness, had notified Sletten that the defendant had downloaded child pornography onto his geology department office computer, referred to as "the sandbox computer."⁴Consequently, Sletten decided to monitor the defendant's download activity.

Later that day, Gluhosky accessed, from his own office computer, the files that the defendant had downloaded.⁵Gluhosky also developed a "monitoring script" that notified him by e-mail whenever the defendant placed new files into the directory in which he had saved the previous images.On the day that Gluhosky implemented it, the monitoring script e-mailed notification to him that the defendant had downloaded new files into that directory.Gluhosky then attempted to confirm that the defendant was in his office.Gluhosky did not see the defendant in his office because the defendant's office door was closed, but a student informed Gluhosky that he was in fact there.Gluhosky later viewed the images that had been downloaded and confirmed that they contained child pornography.

From October 23 through October 30, 1998, Gluhosky continued to monitor when the defendant downloaded new material into the file directory in which the other images had been discovered.On October 30, Gluhosky notified his direct supervisor, Professor Ron Smith, that he believed the defendant was downloading child pornography.Smith instructed him to continue monitoring the defendant's computer activity.On November 2, Gluhosky and Smith met again and decided to contact Yale legal counsel, who referred Smith to Russell Kozak, a lieutenant with the Yale University police department, and Daniel Rainville, a detective with the Yale University police department.Smith informed the officers of what Gluhosky had told him regarding the defendant's computer activity.On November 3, Gluhosky met Kozak and Rainville at the Yale police department and told them that he believed that the defendant had used his computer to acquire child pornography.He provided them with hard copies of computer logs detailing the defendant's computer activities and a compact disc that contained copies of images that the defendant had downloaded to a computer in the geology department.Gluhosky explained that the file transfer protocol log indicated that the defendant was transferring his downloaded files from the geology department computer to his master's residence computer.Kozak and Rainville waited until their meeting with Gluhosky concluded to examine the materials that he had provided.After meeting with Kozak and Rainville, Gluhosky continued to monitor the defendant's computer activity.⁶Subsequent to his initial meeting with Kozak and Rainville on November 3, Gluhosky delivered to them additional materials including log sheets and a second compact disc.All of the materials that he provided to them, however, had been obtained by monitoring the defendant's computer activity prior to the initial November 3 meeting.

On November 3, 1998, Lisa Tutty, an agent of the Federal Bureau of Investigation (FBI), met with Kozak and Rainville at the Yale police department.Tutty reviewed and copied the materials, including the logs, compact discs, and printouts of the images that were on the disc that Gluhosky had provided to Kozak and Rainville.At the end of the meeting, Tutty instructed the Yale police department not to do anything further until she talked to someone in the United States attorney's office.On November 4, Tutty telephoned Gluhosky and they discussed the same information that she had discussed with Kozak and Rainville.During the conversation, Gluhosky informed Tutty that the defendant had downloaded more child pornography that afternoon.

On November 5, 1998, Tutty filed an affidavit in support of an application for "a warrant to search the premises known as 90 High Street, New Haven, Connecticut, also known as the residential quarters of the Master of Saybrook College and attached office . . . and to seize fruits, instrumentalities and evidence of and concerning violations of title 18 of the United States Code, § 2252A (a)(5) . . . ."⁷That same day, United States Magistrate Judge William I. Garfinkel signed a search warrant authorizing the search of "[t]he premises known as the residential quarters and office for the Master of Saybrook College, Yale University, located at 90 High Street, New Haven, Connecticut as depicted below."⁸

On November 6, 1998, Tutty and eight to ten other law enforcement personnel arrived at the Saybrook College Master's Houseat 90 High Street to execute the search warrant.Because the defendant did not respond to repeated requests, telephone calls, and doorbell rings, the agents forced their way in through the front door.As they entered the first floor of the residence, they encountered the defendant, who was descending the stairs.Tutty informed the defendant that they had a search warrant for the premises and interviewed him while other law enforcement members searched the premises.During the interview, the defendant admitted to Tutty that there was child pornography upstairs and led the agents to his computer in room 218.During the search, the agents seized the defendant's computer, zip drives, floppy discs, compact discs, and other items, including two noncommercial, homemade videotapes.Most of the items seized in the search were found in the areas labeled "K" and "L" on a floor plan of the residence.⁹

On December 19, 1998, on the basis of the evidence recorded on the seized videotapes, the defendant was arrested pursuant to a state of Connecticut arrest warrant and charged with two counts of sexual assault in the first degree, two counts of promoting a minor in an obscene performance, and two counts of risk of injury to a child.The defendant pleaded not guilty and filed a motion to suppress the evidence seized during the November 6, 1998 search.He claimed that the search exceeded the scope of the warrant, the affidavit did not establish probable cause, the allegations contained in the affidavit "were either knowingly untrue when made or made with a reckless disregard for the truth of such allegations," the search was conducted pursuant to an unconstitutional statute, and the search otherwise violated his federal and state constitutional rights.The defendant's case remained on the state trial list for almost three years because of unresolved legal issues in his federal case.In October, 2001, the presiding judge in the state proceeding informed the defendant that, unless a plea agreement was reached, the case would be scheduled for trial within the next two months.Both the hearing on the motion to suppress and the trial were scheduled to start in December, 2001.

At some point before the hearing on the motion to suppress, the defendant and his attorney disagreed about legal strategy and the defendant sought a new attorney.Two days before the suppression hearing was scheduled to begin, the defendant informed his original attorney that a New York law firm had agreed to represent him if the case could be continued until mid-January to give new counsel time to prepare for the suppression hearing.When the suppression hearing began on December 12, 2001, the trial court denied the defendant's continuance request.The defendant was represented by his original attorney throughout the suppression hearing.

On January 2, 2002, the court denied the defendant's motion to suppress.The trial court ruled: (1) Gluhosky was not acting as an agent of the police; (2)the defendant did not have a reasonable expectation of privacy in the files that he had downloaded to the Yale geology department computer; (3) the information in the warrant affidavit supported a finding of probable cause, even if the court disregarded the disk that Gluhosky did not view before turning it over to the police; and (4) the search of areas K and L did not exceed the scope of the area authorized by the search warrant.

When jury selection began on January 4, 2002, the defendant changed his plea and entered pleas of nolo contendere to two counts of sexual assault in the first degree, two counts of promoting a minor in an obscene performance, and two counts of risk of injury to a child, but...