State v. Paradis, No. 24194.

• Decision Date: 27 September 2005
• Docket Number: No. 24194.
• Citation: 881 A.2d 530,91 Conn.App. 595
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Victor PARADIS.

881 A.2d 530

91 Conn.App. 595

STATE of Connecticut v. Victor PARADIS.

No. 24194.

Appellate Court of Connecticut.

Argued February 23, 2005.

Decided September 27, 2005.

Nicholas P. Cardwell, Hartford, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, assistant state's attorney, for the appellee (state).

SCHALLER FLYNN and GRUENDEL, Js.

SCHALLER, J.

The defendant, Victor Paradis, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of possession of narcotics with the intent to sell in violation of General Statutes § 21a-278(a). On appeal, the defendant claims, inter alia,¹ that the court improperly relied on the testimony of police officers regarding the execution of a search warrant. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. Christopher Brody, a New Britain police officer, arranged a "controlled buy" of narcotics after meeting with a confidential informant. The informant knew of two individuals, one of whom was the defendant, who sold various illegal drugs, such as ecstasy, marijuana and cocaine. The defendant and his partner stored the drugs at a garage located at 205-207 Bassett Street. The defendant resided at 116 Lowell Street.

The informant indicated to Brody that the procedure for obtaining drugs from the defendant involved a third party identified only as "Andy." The informant would call Andy and request a quantity of illegal drugs. After contacting the defendant or his partner, Andy would pick up the money from the informant, drive to the garage, known as a "stash house,"² on Bassett Street, and meet with the defendant or his partner to conduct the illegal transaction. Andy then would return to the informant and give him or her the drugs he had obtained.

On August 8, 2001, Brody met with the informant, who contacted Andy and asked for a quantity of cocaine. Andy arrived and was observed going to the garage on Bassett Street, where he met with the defendant. Both men went into the garage for a short time and then left. Andy was observed returning to the informant, who subsequently turned over a bag containing a white powder later determined to be cocaine.

On August 9, 2001, the garage owned by the defendant again was placed under surveillance. Jerry Chrostowski, a New Britain police officer, observed the defendant arrive, enter a gated area around the garage, proceed into the garage and, after a few minutes, exit the area. At that point, Chrostowski requested assistance, and the defendant's motor vehicle was stopped by the officers as he was exiting the property. As the defendant was removed from the vehicle, one of the officers noticed, in plain view, a plastic bag sticking out of the defendant's pocket. A field test indicated that the substance in the bag was cocaine, and the defendant was placed under arrest.

Following the defendant's arrest, applications for two search warrants were prepared by the investigating officers. One of the warrants was for the garage on Bassett Street, and the other was for the defendant's residence on Lowell Street. The search of the garage, which occurred first, revealed the presence of cocaine and marijuana.³ The officers then searched the defendant's residence and discovered large amounts of cash, a small amount of narcotics, a cellular telephone, a bank statement, a water bill and a rental agreement.

On February 6, 2002, the defendant filed a motion to suppress tangible evidence, verbal statements and written statements. Specifically, the defendant argued that all of the evidence, including evidence from his garage and found on his person, as well as any of his statements made to the police officers, was subject to suppression as a result of unlawful searches and seizures. Following a hearing over the course of several days in July, 2002, the court, Owens, J., denied the defendant's motion on October 18, 2002.

Pursuant to General Statutes § 54-94a,⁴ the defendant entered a conditional plea of nolo contendere to the charge of possession of narcotics with the intent to sell in violation of § 21a-278(a),⁵ reserving his right to appeal from the denial of his motion to suppress. The court, Handy, J., sentenced the defendant to a term of incarceration of twenty years, execution suspended after twelve years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant raised claims on appeal that relate to three different docket numbers. As a preliminary matter, we must identify the issues raised by the defendant that are properly before us and require a substantive discussion of their merits. The issues raised in the defendant's brief that pertain to matters that have been waived by the defendant's nolo contendere plea are not properly before us and warrant no further discussion.

Stemming from the activity of August 8 and 9, 2001, three separate dockets were generated, all of which contained criminal charges against the defendant. In docket number 197032, the defendant was charged with possession of narcotics in violation of General Statutes § 21a-279(a).⁶ The docket number and accompanying charge appear to have originated from the initial stop of the defendant and subsequent discovery of the bag of cocaine sticking out of his pocket. The state nolled that count.

Docket number 197033 contained nine counts.⁷ Those charges seem to have been lodged as a result of the search at the garage on Bassett street. Following the court's denial of the defendant's motion to suppress, the state filed a substitute information with respect to that docket number. The sole charge in the substitute information was possession of narcotics with the intent to sell. The defendant pleaded nolo contendre to that charge.

Finally, in docket number 197034, the defendant was charged with possession of narcotics in violation of § 21a-279(a). That charge apparently was premised on the results of the search of the defendant's residence on Lowell Street. The prosecutor also nolled that charge. Thus, despite the multiple docket numbers and charges against the defendant, the only crime that the defendant was found guilty of by virtue of his nolo contendere plea, and received a sentence for, was possession of narcotics with the intent to sell. That judgment of conviction is the only judgment properly before us.

On July 9, 2004, subsequent to the filing of this appeal, the state filed a motion to remand the case to the trial court for a determination of whether the ruling on the defendant's motion to suppress was dispositive of the case. This court granted the state's motion on September 13, 2004.⁸ The court, Handy, J., determined that the court's ruling on the motion to suppress was dispositive, subject to the following articulation. The initial stop and seizure of the defendant and the statements made by him thereafter were not dispositive, nor was the issue of the money and drugs recovered at the defendant's residence on Lowell Street. The dispositive issue concerned the drugs seized at the garage on Bassett Street.⁹

We conclude that the issue concerning the timing of the search of the garage is the only claim reviewable on appeal.¹⁰ In order to explain our determination, it will be helpful to discuss briefly the relationship between a nolo contendere plea and § 54-94a. "It is well established that an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.... Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable ...." (Internal quotation marks omitted.) State v. Lasaga, 269 Conn. 454, 479, 848 A.2d 1149 (2004). The defendant in the present case entered a conditional plea of nolo contendere pursuant to § 54-94a. Nevertheless, "[our Supreme Court] has been reluctant to invoke its authority to review an issue raised in connection with a conditional plea of nolo contendere when ... that issue does not fall within the narrow scope of § 54-94a." (Internal quotation marks omitted.) Id.

A detailed explanation of § 54-94a is necessary for our discussion. Our Supreme Court has stated: "When viewed in light of the definition of subject matter jurisdiction and the statutes that create such jurisdiction, it becomes clear that § 54-94a neither confers nor curtails appellate subject matter jurisdiction. What § 54-94a does is abrogate, in certain circumstances, the waiver of constitutional rights that is implicit in a guilty or nolo contendere plea....

"In enacting § 54-94a, the legislature created a new, expedited route to the appellate courts but it did not create a new jurisdictional doorway into those courts. Section 54-94a is intended to promote judicial economy by allowing the parties to litigate a suppression or dismissal issue fully in the trial court, and thereafter allowing the defendant to obtain review of an adverse ruling without the parties' or the court's expending additional resources." (Citations omitted; internal quotation marks omitted.) State v. Piorkowski, 236 Conn. 388, 401-402, 672 A.2d 921 (1996); see also State v. Kelley, 206 Conn. 323, 334-35, 537 A.2d 483 (1988); State v. Madera, 198 Conn. 92, 98-99, 503 A.2d 136 (1985) (Supreme Court declined review of reserved claims outside scope of § 54-94a).

The appellate courts in this state consistently have required that § 54-94a be interpreted strictly. See State v. Turner, 267 Conn. 414, 425, 838 A.2d 947, cert. denied, ___ U.S. ___, 125 S.Ct. 36, 160 L.Ed.2d 12 (2004); State v. Gilnite, 202 Conn. 369, 375-76, 521 A.2d 547 (198...