State v. Palangio, No. 8610

CourtAppellate Court of Connecticut
Writing for the CourtLANDAU
Citation588 A.2d 644,24 Conn.App. 300
PartiesSTATE of Connecticut v. David A. PALANGIO.
Decision Date02 May 1991
Docket NumberNo. 8610

Page 644

588 A.2d 644
24 Conn.App. 300
STATE of Connecticut
v.
David A. PALANGIO.
No. 8610.
Appellate Court of Connecticut.
Argued Nov. 6, 1990.
Decided March 26, 1991.
Certification Denied May 2, 1991.

Page 645

[24 Conn.App. 301] Thomas K. McDonough, Sp. Public Defender, for appellant (defendant).

Paul J. Ferencek, Deputy Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Corinne L. Klatt, Asst. State's Atty., for appellee (state).

Before Edward Y. O'CONNELL, NORCOTT and LANDAU, JJ.

LANDAU, Judge.

After consolidation of two separate proceedings, the state, in a substitute information, charged the defendant with three counts of risk of injury to, or impairing the morals of, children in violation of General Statutes § 53-21. 1 The defendant entered pleas of not guilty and the jury found him guilty of all three counts. On appeal, the defendant claims that General Statutes § 53-21 is unconstitutionally vague and overbroad as applied to him and that the trial court improperly denied his motion to suppress. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. On several occasions between September and December of 1985, the three victims, friends of the defendant's son, were guests of the defendant at his apartment. During these visits, the defendant took numerous photographs of the victims in provocative poses in various stages of undress and in differing types of clothing and undergarments. The defendant told the victims that these photographs would comprise their modeling portfolios. He supplied them with the clothing in the photographs and some of the photographs were taken in his bedroom and on his bed. The defendant also had the victims take photographs of him nude or seminude.

[24 Conn.App. 302] In December, 1985, the police searched the defendant's apartment pursuant to a search warrant for stolen property in connection with a burglary investigation involving the defendant's son. Among the items to be seized were cameras and film. The police seized the defendant's undeveloped film containing the victims' photographs. The defendant subsequently asked the police for the return of his film. The police developed the film in order to ensure that the film did not belong to one of the burglary victims, gave the developed photographs to the defendant, and retained the negatives because they suspected that the females in the photographs were children and that a crime had been committed.

In September, 1987, the police received a complaint from the department of children and youth services (DCYS) alleging that the defendant was engaging in child abuse. Pursuant to that allegation, the police executed a search warrant for items including pornographic photographs of male and female adults and children, cameras and flash equipment and developed and undeveloped film. As a result of the DCYS complaint, the police identified one of the victims. Through that girl's father, the police learned the identities of the other two victims. The defendant was charged with one count of risk of injury to a child on November 26, 1987, and with two additional counts on December 18, 1987.

I

The defendant challenges the constitutionality of General Statutes § 53-21 by asserting that the statute, as applied to him, is vague and overbroad.

"In order to surmount a vagueness challenge, 'a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.' McKinney v. Coventry, 176 Conn. 613, 618, [24 Conn.App. 303] 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties.

Page 646

Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665 , 92 L.Ed. 840 (1948).... Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. Bishop v. Kelly, 206 Conn. 608, 613, 539 A.2d 108 (1988)." State v. Schriver, 207 Conn. 456, 460-61, 542 A.2d 686 (1988). A penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning. State v. Pickering, 180 Conn. 54, 61, 428 A.2d 322 (1980). We must, therefore, review prior case law to determine whether the defendant had fair warning that taking photographs of partially clothed minors violates § 53-21.

General Statutes § 53-21 proscribes two general types of behavior: "(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare ... and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). In the first of these categories, it is not necessary, nor have the courts required, that a defendant touch any part of the victim's body to violate § 53-21; "the creation of a prohibited situation is sufficient."...

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17 practice notes
  • Krukowski v. Swords, Civil No. 3:97cv0006 (AWT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 9, 1998
    ...Manluccia also included making sexually suggestive comments and attempted sexual assault of the victim. Finally, in State v. Palangio, 24 Conn.App. 300, 301, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991), the court affirmed a conviction for taking photographs of three minor......
  • State v. Zarick, No. 14465
    • United States
    • Supreme Court of Connecticut
    • August 17, 1993
    ...clause of the fourteenth amendment. We disagree. [227 Conn. 220] The defendant's claim is based on a reading of State v. Palangio, 24 Conn.App. 300, 303-304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991), which, he claims, holds that the photographing of naked children is a......
  • State v. Scruggs, No. 17587.
    • United States
    • Supreme Court of Connecticut
    • September 5, 2006
    ...that forcing young children to undress fell within the scope of the statute. Id., at 778-79, 695 A.2d 525, citing State v. Palangio, 24 Conn.App. 300, 305, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); see also State v. Velez, 17 Conn.App. 186, 199, 551 A.2d 421 (1988), ce......
  • State v. Thomas W., No. 29003.
    • United States
    • Appellate Court of Connecticut
    • June 30, 2009
    ...(1976) (defendant took nude and seminude photographs of victim after promising to give her "C" in class); See also State v. Palangio, 24 Conn.App. 300, 588 A.2d 644 (defendant created situation that impaired victims' morals when he took numerous photographs of them in various stages of undr......
  • Request a trial to view additional results
17 cases
  • Krukowski v. Swords, Civil No. 3:97cv0006 (AWT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 9, 1998
    ...Manluccia also included making sexually suggestive comments and attempted sexual assault of the victim. Finally, in State v. Palangio, 24 Conn.App. 300, 301, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991), the court affirmed a conviction for taking photographs of three minor......
  • State v. Zarick, No. 14465
    • United States
    • Supreme Court of Connecticut
    • August 17, 1993
    ...clause of the fourteenth amendment. We disagree. [227 Conn. 220] The defendant's claim is based on a reading of State v. Palangio, 24 Conn.App. 300, 303-304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991), which, he claims, holds that the photographing of naked children is a......
  • State v. Scruggs, No. 17587.
    • United States
    • Supreme Court of Connecticut
    • September 5, 2006
    ...that forcing young children to undress fell within the scope of the statute. Id., at 778-79, 695 A.2d 525, citing State v. Palangio, 24 Conn.App. 300, 305, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); see also State v. Velez, 17 Conn.App. 186, 199, 551 A.2d 421 (1988), ce......
  • State v. Thomas W., No. 29003.
    • United States
    • Appellate Court of Connecticut
    • June 30, 2009
    ...(1976) (defendant took nude and seminude photographs of victim after promising to give her "C" in class); See also State v. Palangio, 24 Conn.App. 300, 588 A.2d 644 (defendant created situation that impaired victims' morals when he took numerous photographs of them in various stages of undr......
  • Request a trial to view additional results

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