State v. Peluso

Docket NumberSC 20303
Decision Date18 August 2022
Citation344 Conn. 404,279 A.3d 707
Parties STATE of Connecticut v. Bernard J. PELUSO
CourtConnecticut Supreme Court

James P. Sexton, assigned counsel, with whom was Megan L. Wade, assigned counsel, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).

McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.*


We consider in this certified appeal whether the trial court abused its discretion by allowing the state to amend its information after the commencement of trial when the state was aware, between two to four weeks prior to the start of trial, that the time frame alleged in its information was inaccurate.1 The defendant, Bernard J. Peluso, appeals from the judgment of the Appellate Court, which affirmed the trial court's judgment of conviction, rendered after a jury trial, of two counts each of sexual assault in the first degree and sexual assault in the fourth degree, and of three counts of risk of injury to a child. See State v. Peluso , 187 Conn. App. 498, 500–501, 511, 202 A.3d 1085 (2019). On appeal to this court, the defendant contends that the Appellate Court incorrectly concluded that the state had demonstrated good cause to amend its information during trial and that the defendant's substantive rights would not be prejudiced by the late amendment. See id., at 501, 202 A.3d 1085. We agree with the defendant and, accordingly, reverse the judgment of the Appellate Court and order a new trial.

The Appellate Court's opinion, as supplemented by the record, sets forth the facts and procedural history; see id., at 501–505, 202 A.3d 1085 ; which we summarize in relevant part. In 2008 and 2009, when the victim, S,2 was in third grade, she lived in a condominium complex with her mother, her older sister, L, and her older brother. At that time, the defendant was living with his girlfriend in the same condominium complex. S and L spent a lot of time with the defendant during that time period; approximately three to five times per week, S and L would go to the defendant's condominium after school. The defendant was "like an uncle" to S and L, and he called them his nieces. Generally, the defendant's girlfriend was not home during the times he spent with S and L after school. On certain occasions, S spent time alone with the defendant. It was during these times, in particular, that the defendant began making sexually suggestive comments to S. Soon thereafter, he allegedly began sexually assaulting her.

In connection with three separate incidents of alleged abuse that occurred "[o]n or about ... 20102011"; see id., at 502 and n.3, 202 A.3d 1085 (describing those three incidents and other uncharged misconduct); the defendant was arrested and charged on January 14, 2015, with one count of sexual assault in the first degree and two counts of risk of injury to a child. In April, 2016, more than fifteen months after the defendant was originally charged and during the first day of jury selection, the state filed a long form substitute information, in which it charged the defendant with two counts each of sexual assault in the first degree and sexual assault in the fourth degree, and with three counts of risk of injury to a child, but continued to allege that the incidents occurred "on or about a date during the year 2010 or 2011 ...."3 The long form information was filed while the prosecutor was in court and in the presence of defense counsel. At trial, approximately three weeks later, however, during her direct examination, S acknowledged that she had been prepared for her courtroom appearance by the prosecutor "a few weeks" beforehand and testified that the incidents had occurred when she was in third grade, in 2008 or 2009.

On cross-examination, defense counsel inquired regarding the inconsistency in the time frames. Specifically, defense counsel confirmed that, in her sworn statement to the police, taken in 2015, S alleged that the incidents occurred in 2010 or 2011, when she was in fifth grade. The following colloquy occurred:

"[Defense Counsel]: Was your memory better [in 2015] or was it better today?

"[S]: Today.

"[Defense Counsel]: And it is better today because you testified that, two weeks before this trial, you start[ed] preparing with the state ... is that correct?

"[S]: Yes.

"[Defense Counsel]: And is it correct that you were told by either the assistant state's attorney or an investigator that [the defendant] did not live in that [condominium] unit in the year[s] 2010 and 2011?

"[S]: Yes.4

"[Defense Counsel]: And, when you were in fifth grade, ten years old ... [although] you swore [in your statement to the police] that this is when [the incidents] occurred, that was impossible because [the defendant] didn't live there. Isn't that correct?

"[S]: Yes." (Footnote added.)

The next day, the defense moved for a judgment of acquittal on the ground that the alleged offenses could not have occurred in 2010 or 2011, the time frame alleged in the state's long form information filed at the beginning of jury selection approximately three weeks earlier, because the defendant did not live in the condominium complex at that time. The state, in turn, moved to amend its information to allege that the incidents had occurred in 2008 or 2009, consistent with S's trial testimony. The court inquired: "[W]hen did the state become aware that the approximate date was not the year 2010 or [20]11?" The prosecutor responded: "When we met with [S] ... two to four weeks ago. In discussing the facts of the case, she indicated to us, in our interview ... that she couldn't recall specifically when it was. My recollection of our conversation was that she indicated that it was sometime in grammar school, fifth grade or [earlier]. ... So, she did not narrow it down for us, like she did in court yesterday, essentially left it with us that she thought it was fifth grade or earlier, that she was younger but not [in] middle school. And, when she was in court yesterday, we all know that she was quite specific and testified ... that she was eight years old or in third grade."

Defense counsel objected to the state's motion to amend, arguing that the state failed to show good cause for the late amendment, as required by Practice Book § 36-18. Defense counsel contended that the state knew, two to four weeks before trial, when it prepared S for her court appearance, that the time frame alleged in its information was inaccurate and that the alleged incidents could not have occurred in 2010 or 2011. Defense counsel argued that the state had no justifiable reason for failing to properly amend its information before the commencement of trial. In addition, defense counsel argued that the defendant would be prejudiced by the late amendment insofar as his "entire defense was based on [the] fact that it was impossible for [the defendant] to be there [in 2010 or 2011]," as the defendant did not live in the condominium complex when the events allegedly occurred.

In response to defense counsel's claim of prejudice, and without directly addressing the good cause aspect of defense counsel's objection,5 the prosecutor argued that the defendant was not unduly prejudiced by the change in time frame, as S—in her police statement and subsequent testimony—consistently indicated that the offenses occurred when the defendant was living in the condominium complex. The prosecutor specifically noted: "[S] talk[ed] about [the defendant's] couches, his pornography magazine, his desks, his bed when he clearly is living there. ... She talked about how they cooked, how they watched TV. So, this is not an undue surprise to the defendant."

Ultimately, the trial court granted the state's motion to amend its information. In reaching its decision, the court considered the requirements set forth in Practice Book § 36-18. First, the court stated: "I will find good cause. This is a child sexual assault case. This does involve a very young child. The incident[s] occurred when [S] was eight or nine [years old] ....

[T]here [are] [a] substantial amount of studies that indicate [that] children of those age[s] have no conception of dates and times. [S] was very clear that [the abuse] occurred with the defendant. And it's very clear ... that the defendant had access to [S] for a period of time, whether it was 2010 or 2008. So, you know, we're [talking] basically of semantics." Second, the court found that "there are no additional charges [in] ... the [state's amended information]." Finally, the court went on to discuss whether the defendant's substantive rights would be prejudiced due to the state's late amendment. The court explained: "I don't believe it's [the] defense's position that the defendant committed these acts two years earlier, so ... their defense is ... just that they were committed [on] a different date than the [long form] information [alleged]."6

In light of the newly amended information, the trial court offered to grant the defendant a continuance in order to prepare his defense. Because the case was "early in the game," the court expressed that it was confident that it would have available jurors "[one] week from now, [or one] month from now." Accordingly, the court indicated that it would provide the defendant "as long a continuance as ... [was] need[ed] to prepare ...." Following a recess, defense counsel informed the court that the defendant would need a continuance. Defense counsel requested "at least five weeks." The court responded: "To do what? No. No. No. Be specific here, [counsel]. We're not taking a five week continuance unless—if you need a five week continuance, you'll get it." The court then asked defense counsel to be specific and explain what the defense would need to do during the continuance period. Once the court established that...

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