State v. Leary

• Decision Date: 12 January 1999
• Docket Number: (AC 16438)
• Citation: 725 A.2d 328,51 Conn. App. 497
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOHN M. LEARY

51 Conn. App. 497

725 A.2d 328

STATE OF CONNECTICUT v. JOHN M. LEARY

(AC 16438)

Appellate Court of Connecticut.

Argued November 6, 1998.

Officially released January 12, 1999.

Lavery, Spear and Shea, Js.

Barry N. Silver, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Eugene R. Calistro, assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, John Leary, appeals from the judgment of conviction of ticket scalping in violation of General Statutes § 53-289 rendered after a trial to the court.¹ He claims that the trial court improperly (1) denied his motions to dismiss and to suppress that were premised on a claimed lack of probable cause to arrest, (2) denied his motion for a judgment of acquittal that alleged that the evidence was insufficient to support his conviction and (3) found the defendant guilty even though the weight of the evidence demonstrated that the guilty finding was manifestly unjust. We affirm the judgment.

The trial court found that on January 21, 1996, the defendant was on George Street, in the vicinity of the New Haven Coliseum, with tickets for a concert at the Coliseum in his hand. Those tickets had face values no greater than $30, yet the defendant offered New Haven police officer Aaron Sweeney, working undercover, floor seats for $70. The trial court found the defendant guilty as charged and this appeal followed.

I

A

The defendant first claims that the trial court should have granted his motion to dismiss in which he alleged, inter alia, that he "was placed under arrest without the requisite probable cause." He offers no analysis or authority in support of this claim, and, therefore, we decline to review it because it is inadequately briefed.² "We are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Citation omitted; internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).

B

The defendant next claims that the trial court improperly denied his motion to suppress evidence³ because Sweeney lacked probable cause to arrest him for ticket scalping. He asserts that the arresting officer's lack of knowledge of both the face value of the tickets possessed by the defendant and the identity of those with permission to sell tickets for more than the face value precludes a finding of probable cause.

"We review the trial court's finding of probable cause under the clearly erroneous standard, wherein we defer to the trial court's factual findings unless they are clearly erroneous and defer to the trial court's legal conclusion unless it is not legally and logically consistent with the factual findings." State v. Torres, 31 Conn. App. 443, 450, 625 A.2d 239 (1993), aff'd, 230 Conn. 372, 645 A.2d 529 (1994).

Probable cause is a common sense, nontechnical concept. "Probable cause exists when there are facts and circumstances within the officer's knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed.... The probable cause test then is an objective one.... While probable cause requires more than mere suspicion ... the line between mere suspicion and probable cause is often fine and that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.... The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same— and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.... We also note that the issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties." (Citations omitted; internal quotation marks omitted.) State v. Pierog, 33 Conn. App. 107, 115-16, 634 A.2d 301 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994).

We turn first to the factual basis for the court's denial of the motion to suppress. The trial court did not issue a written memorandum of decision and the transcript of the oral decision contains very little fact finding. The defendant focuses on the court's statement that "[i]t turns out the tickets had a value between $25 and $30" and asserts that this statement shows that the trial court used information that was gained after the arrest to find probable cause for the arrest. We disagree.

First, the trial court heard the motion during the trial and the arresting officer testified at the motion hearing and during the state's case-in-chief, both of which were prior to the court's ruling on the motion. The evidence was not designated as applying to the motion to suppress or the state's case-in-chief. We cannot discern whether the court's comment was a reference to evidence brought out during trial or whether the court was using that information to justify its finding of probable cause. Moreover, the defendant did not file a motion to articulate to clarify the basis of the court's decision. Second, Sweeney testified that he knew before he arrested the defendant that the tickets for that evening's event "were $25, $30 in that area, much lower than the $70." This information, in conjunction with all of the circumstances, was sufficient for the officer to conclude that the defendant's offer to sell him a ticket for $70 gave him probable cause to arrest the defendant for ticket scalping.

The defendant also claims that there was no probable cause because Sweeney testified that he did not know who, if anyone, had permission to sell tickets for more than their face value. Even if we assume, without deciding, that such information is part of the probable cause calculus, the facts known to the arresting officer gave him reason to believe that the defendant did not have such permission. Sweeney observed an earlier sale wherein the defendant's customer jokingly told the defendant that he was a police officer and that the defendant was "under arrest." The defendant replied, "Don't even fuck around. That's not even funny," suggesting that the defendant was not selling the tickets with the permission of the owner or operator. Moreover, the arresting officer and his partner were being paid by the coliseum and met with coliseum officials prior to starting their tour of duty to detect and deter ticket scalping. It would have been nonsensical for those in charge of the coliseum to have hired these officers to deter ticket scalping while at the same time authorizing the defendant to roam around the outside of the facility selling tickets for more than their face value.

After reviewing the evidence and the sparse oral decision, we cannot say that the trial court's factual findings were clearly erroneous or that its conclusion that there was probable cause to arrest the defendant was improper.

II

The defendant's next claim, that the evidence was insufficient to support his conviction of ticket scalping, is based on the same arguments that he makes with respect to the finding of probable cause. He asserts that the state...