State v. Radzvilowicz

• Decision Date: 30 September 1997
• Docket Number: No. 14734,14734
• Citation: 703 A.2d 767,47 Conn.App. 1
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edward RADZVILOWICZ.

Page 767

703 A.2d 767

47 Conn.App. 1

STATE of Connecticut v. Edward RADZVILOWICZ.

No. 14734.

Appellate Court of Connecticut.

Argued May 5, 1997.

Decided Sept. 30, 1997.

Lewis H. Chimes, Special Public Defender, for appellant (defendant).

Rita M. Shair, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, John Waddock, Assistant State's Attorney, and Dennis O'Connell, Law Student Intern, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and HEALEY, JJ.

HEALEY, Judge.

After a trial to a jury, the defendant, Edward Radzvilowicz, was found guilty on all counts of two informations that had been consolidated for trial. One information charged the defendant with two counts of larceny in the first degree in violation of General Statutes §§ 53a-119 ¹ and 53a-122 (a)(2) and four counts of forgery in the second degree in violation of General Statutes § 53a-139 (a)(2). ² The other information charged the defendant with one count of larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a)(2). The defendant was sentenced to a total effective sentence of twenty years on all convictions. ³ This appeal followed.

On appeal, the defendant claims that (1) the trial court erroneously consolidated the two informations, (2) the evidence on the one count information charging him with larceny in the first degree from Michael Tavarozzi and Holiday Foods, Inc. (HF, Inc.), was insufficient as a matter of law to prove that he wrongfully appropriated assets of HF, Inc., because he was an owner of that company, (3) his conviction for forgery of the federal income tax documents must be set aside as violating the supremacy clause of the United States constitution, and (4) the prosecutor's references in his closing argument to the defendant as a "con man" so infected the trial with unfairness as to constitute a denial of due process.

I

A

Among the facts that the jury reasonably could have found with reference to the six count information are the following. Sometime in the spring of 1990, Edward Chicoski and Rafael Sandoval formed three Connecticut corporations, of which they were the sole owners. These corporations were Holiday Foods of Connecticut, Inc. (HFCT), Holiday Foods of Massachusetts, Inc. (HFMA) and Holiday Foods of New England, Inc. (HFNE). Their businesses involved the sale and delivery of six months supply of food to homeowners, as well as the sale of freezers. HFCT and HFMA were more active than HFNE. The latter corporation was to become more active if the other businesses expanded. Sandoval was mostly at the HFMA office in Massachusetts, although, on occasion, he came to the HFCT office in Cheshire. Michael Tavarozzi originally worked for HFMA as the branch sales manager but later came to work for HFCT at the Cheshire office. Chicoski, besides his interest in the three corporations, was also the sole owner of Valley Food Distributors (Valley Food) in Waterbury. Valley Food operated a meat plant that processed meat for home freezer plans, restaurants and institutions. HFCT and HFMA purchased their products from Valley Food. Chicoski's major concentration was Valley Food, where he generally worked from five in the morning to five at night. After closing Valley Food, he would go over to the HFCT office in Cheshire for a "couple of hours at night." He was not really actively involved in the day-to-day operations of any of the three corporations that he and Sandoval had formed. Marilyn Halpert worked for HFCT at the Cheshire office as credit manager and administrative assistant and also did general office work. Katherine Favale was the full-time bookkeeper and did the financial record keeping manually at that office. The payroll for the Holiday Food corporations was handled by an outside payroll service because there were so many transactions. Prior to the formation of HFCT and HFMA, Halpert and Favale had worked with Chicoski for fifteen to twenty years.

Business kept expanding. Favale was not able to keep up with the work and could not learn to use computers efficiently enough to do the accounting in an automated fashion. Chicoski described her as "computer illiterate." Chicoski and Sandoval decided to hire a "full-charge bookkeeper-controller" to take care of the financial record keeping of all three companies who would know how to use the computer in performing all the accounting functions. An advertisement was placed in the newspaper for such a position.

In September, 1990, Chicoski and Sandoval hired the defendant at a salary of $400 per week. While his salary would be paid by HFCT, his duties included handling the finances of both HFCT and HFMA. The defendant was computer literate. His employers indicated that his duties would include taking charge of payroll, normal bookkeeping control, accounts payable and monitoring incoming receivables. The defendant's initial responsibility was to set up an appropriate computer accounting system, which he did with the aid of a programmer. He also was to handle accounts payable through the computer, as well as accounts receivable from customers. In addition, he was in charge of handling the general ledger, doing check reconciliations, making deposits and writing checks. The defendant worked in the Cheshire office. Shortly after he came to work, the defendant told Chicoski that he could save the companies a "lot of money" by doing the job of the outside payroll service, the cost of which was significant, and buying a payroll package that was compatible with their accounting package so that payroll could be handled in-house. A computer software package to accomplish the payroll function in-house was purchased. As the defendant explained to Chicoski, the purpose of that program was to calculate all of the payroll and federal and local taxes in-house, and to write employees' checks. After this program was set up, the defendant was the only person who knew how to use it ⁴ and had the password to gain access to all the various functions of the new computer accounting program, and he was the only person responsible for handling the 941 ⁵ tax forms. Favale had previously handled those forms and, as long as she did, there had been no problem with the Internal Revenue Service (IRS). Favale left her employment there before the defendant started. According to Sandoval, the companies "had replaced [Favale] with [the defendant]." No one ever filled out the 941 tax forms except Favale and the defendant. Halpert left her employment there not long after Favale did. Chicoski continued to go to the Cheshire office "probably every day" after leaving his Waterbury place of business. He thought that the defendant was a "very conscientious, hard working employee" because the defendant was there when Chicoski arrived and when he left. The defendant always picked up the mail and "took care of it." On occasion, he even went to the Massachusetts office of HFMA where he would do some of the "bookkeeping functions" for HFMA. Chicoski drove there with him once or twice in the defendant's Mercedes; the defendant had a Toyota when he first went to work for these corporations. The defendant told Chicoski that he had inherited a large sum from his father and even showed him a New Haven Savings Bank passbook with $700,000 or $800,000 in it.

As time passed, there were many weeks when the defendant told Sandoval, who in turn told Chicoski, that HFCT did not have enough money to pay for the food being purchased. This included food purchased from Valley Distributors. This was difficult for Sandoval and Chicoski to believe because of the volume of sales.

Toward the end of 1991, Chicoski and Sandoval decided to sell the assets of HFCT because it was not making money. They reached that conclusion because of financial statements and profit and loss statements generated by the defendant. Tavarozzi, who had worked out of the Connecticut office, originally had the idea of attempting to purchase the assets of HFCT. He was not familiar with the defendant's later disclosed conduct concerning his handling of the records and check writing of HFCT or HFMA. Tavarozzi sounded out the defendant on the idea of buying HFCT. The defendant was receptive. Two other employees of HFCT, William Scharr and Allen Carder, became part of the group. Tavarozzi approached Chicoski about a proposed purchase. The participation of the defendant within the group was not disclosed to Chicoski or Sandoval. An agreement was reached late in 1991 to sell the assets of HFCT. At that time, the defendant worked for both HFCT and HFMA. After the sale, HF, Inc., was formed as a Connecticut corporation. Tavarozzi and the defendant owned 51 percent and Scharr and Carder owned 49 percent of HF, Inc. ⁶ Chicoski would not have sold the assets of HFCT had he known that the defendant was one of the buyers. Sandoval was enthusiastic about the sale. Even though HF, Inc., had been formed after the sale of HFCT's assets, the latter corporation operated until about February, 1992, to clean up odds and ends.

In 1992, an IRS investigator, Linda Rheault, discovered discrepancies in certain filed 941 forms of HFCT and HFMA. These involved the amounts being paid and the indication that there were no employees. The discrepancies began with the filing for the September, 1990 quarter. Prior to that time, there had been no problem with the IRS concerning the 941 filings. The names on the forms involved were those of Favale and Halpert who, in fact, did not sign those forms. The defendant had forged their signatures. As a result of the investigation, the IRS filed a levy in excess of $40,000 on the assets of HFCT and one in excess of $105,000 on the assets of HFMA, as well as one of $90,000 against HF, Inc. Both Chicoski and Sandoval were amazed when they learned this, as they believed that the income generated was sufficient to have paid the IRS the tax liability. They had...