State v. Rosario
| Decision Date | 04 January 2022 |
| Docket Number | AC 42827 |
| Citation | 209 Conn.App. 550,267 A.3d 946 |
| Parties | STATE of Connecticut v. Sigfredo ROSARIO |
| Court | Connecticut Court of Appeals |
Raymond L. Durelli, assigned counsel, for the appellant (defendant).
James M. Ralls, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Joseph S. Danielowski, assistant state's attorney, for the appellee (state).
The defendant, Sigfredo Rosario, appeals from the judgment of conviction, rendered following a jury trial, of larceny in the second degree in violation of General Statutes §§ 53a-119 (1) and 53a-123 (a) (2). On appeal, the defendant claims that the court (1) improperly ordered that he pay restitution without first considering the factors enumerated in General Statutes § 53a-28 (c), (2) abused its discretion in denying his motion for an extension of time within which to begin making restitution payments and (3) violated his due process right to a fair and impartial trial when it questioned him and two of the state's witnesses.1 We affirm the judgment of the trial court.
The following facts, which the jury reasonably could have found, and procedural history are relevant. The defendant resided at the Lincoln Park condominium complex in Waterbury and became the president of the board of directors of the Lincoln Park condominium association (association) in May, 2013. In November, 2014, Omayra Pizarro, the treasurer of the board of directors of the association, became concerned about the finances of the association and asked the defendant for financial information related to her concerns. When the defendant failed to provide such information, Pizarro examined the bank records of the association and noticed that checks had been written from the association's bank account to the defendant. Pizarro shared her concerns with James Loughlin, the general counsel for the association, and Loughlin asked the defendant for an accounting, which the defendant declined to provide.
Pizarro then contacted Detective Kyle Howles of the Waterbury Police Department and provided him with the association's bank records and bylaws, which state that no member of the board of directors shall receive compensation from the association for acting as such. Howles then contacted the defendant, who provided Howles with his personal bank records. Howles’ investigation revealed that thirteen checks, totaling $47,931.60, had been written from the association's bank account to the defendant and had been deposited in the defendant's personal bank account. The defendant made withdrawals from that same personal bank account for legitimate purchases for the condominium complex, as well as for personal items such as gasoline, groceries, fast food, mortgage payments and cell phone bills. The defendant explained to Howles that he had placed the money into his personal bank account because he needed cash to pay for projects around the condominium, to pay day laborers who only accepted cash and to negotiate better prices with contractors; he did concede, however, that there was no accounting, notes, or record of those expenses. Howles did not include in his calculation of personal expenses any withdrawals that possibly were related to condominium improvements. Howles determined that the defendant had withdrawn "just short of $20,000" from the subject bank account for expenses that the defendant had acknowledged were personal. The defendant testified at trial that he "took thirteen checks for $47,131.60" from the association and that he used $17,515.09 of that amount for personal expenses.
Following a jury trial, the defendant was convicted of larceny in the second degree. The court, Crawford , J. , sentenced the defendant to five years of imprisonment, execution suspended, and five years of probation with special conditions, including the payment of restitution in the amount of $17,500, to be paid at a rate of $400 per month beginning in February, 2019. This appeal followed.
The defendant filed a motion for stay of execution of his probation, a motion for stay of the conditions of his probation and a motion for extension of time to start making the restitution payments, which motions the trial court denied. The defendant filed a motion for articulation on December 11, 2019, requesting that the court articulate the basis, according to the factors in § 53a-28 (c), for its order of restitution. On January 8, 2020, the court issued an articulation in which it referenced an excerpt of the transcript of a June 17, 2019 hearing on the defendant's postverdict motions for stay of execution of his probation, for stay of the conditions of his probation and for an extension of time to start making the restitution payments. The defendant filed a second motion for articulation on January 23, 2020, requesting a further articulation as to the court's decision to impose restitution pursuant to § 53a-28 (c). The court issued a second articulation on March 4, 2020, explaining the factual and legal basis for its decision to impose restitution. Additional facts and procedural history will be set forth as necessary.
The defendant first claims that the court committed plain error when it required him, as a special condition of probation, to pay restitution in the amount of $400 per month without first considering the factors enumerated in § 53a-28 (c).2 He argues that the court had before it no evidence that he had any income, assets or the ability to generate enough income to pay $400 per month in restitution. We are not persuaded.
(Citations omitted; internal quotation marks omitted.) State v. Moore , 85 Conn. App. 7, 11, 855 A.2d 1006, cert. denied, 271 Conn. 937, 861 A.2d 510 (2004).
Section 53a-28 (c) (3) provides in relevant part that,
We conclude that the court's remarks at sentencing, combined with its second articulation, make clear that the court considered the relevant factors in § 53a-28 (c) (3) (A) through (D).3 In light of our determination that the alleged error did not occur, we need not address the defendant's argument that § 53a-28 (c) (3) mandates that the court articulate its findings on the record with respect to the four factors in subparagraphs (A) through (D).
With respect to the factors enumerated in subparagraphs (A) and (B) of § 53a-28 (c) (3), which concern the defendant's ability to pay restitution and the defendant's financial resources and the burden restitution would place on him, the court, in its second articulation, stated that "[t]he defendant has an earning capacity that would enable him to make ... restitution." The court further elaborated that the defendant graduated from high school, received a certificate from a Turbo Jet Flight Engineer course, earned credits from two other programs, has experience in real estate, "can be of help in the community in reviving vacant office buildings," has computer skills, can work as a consultant related to computers and has worked as a consultant from 2008 through 2015. The court also noted in that second articulation that, at sentencing, in requesting probation, the defendant stated that he has the ability to work and further noted that the defendant is supported financially by his mother.
The court also considered the rehabilitative effect on the offender of paying restitution and the impact on the victims pursuant to subparagraphs (C) and (D) of § 53a-28 (c) (3). At the sentencing hearing, the court stated to the defendant: "[Y]ou knew you had no access to the funds, and I didn't know at what point you decided that you were entitled to it, but ... these are hardworking people and I think it's more important that there be restitution." In its second articulation, the court explained that For the foregoing reasons and in light of the fact that the court articulated its findings on the record regarding the four factors in § 53a-28 (c) (3) (A) through (D), we conclude that reversal under the plain error doctrine is not warranted.
The defendant next claims that the court abused its discretion by denying his motion for an...
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State v. Rosario
...assistant state's attorney, in opposition.The defendant's petition for certification to appeal from the Appellate Court, 209 Conn. App. 550, 267 A.3d 946 (2021), is ...