State v. Stellato, 4092

• Decision Date: 14 April 1987
• Docket Number: No. 4092,4092
• Citation: 523 A.2d 1345,10 Conn.App. 447
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Vincent STELLATO.

Page 1345

523 A.2d 1345

10 Conn.App. 447

STATE of Connecticut v. Vincent STELLATO.

No. 4092.

Appellate Court of Connecticut.

Argued Jan. 15, 1987.

Decided April 14, 1987.

Robert M. Casale, Branford, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on the brief, were Mary Galvin, Asst. State's Atty., and Cheryl M. Petrucci, Legal Intern, for appellee (state).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

HULL, Judge.

The defendant was convicted of conspiracy to commit larceny in the first degree, in violation of General Statutes §§ 53a-48 and 53a-122(a)(2), conspiracy to commit burglary in the third degree, in violation of General Statutes §§ 53a-48 and 53a-103, and larceny in the first degree, in violation of General Statutes §§ 53a-119 and 53a-122(a)(2). The defendant appeals from the judgment of conviction, claiming that the trial court erred (1) in denying his motion for judgment of acquittal on the first and second counts of the information in that the evidence presented at trial was insufficient to prove guilt beyond a reasonable doubt, (2) in ordering him to make a $10,000 charitable contribution as part of his sentence, and (3) in denying the portion of his motion for judgment of acquittal which asserted that the defendant was improperly charged with two counts of conspiracy arising out of a single agreement.

The jury could reasonably have found the following facts. On the evening of October 2, 1980, between 6 and 10 p.m., over 250,000 gallons of home heating oil, worth over $200,000, were stolen from the Wyatt Company oil terminal in Hamden. It was transported in tanker trucks to storage facilities at Bello and Sons I.D. Systems in West Haven.

Planning of the oil theft began many months before its commission. The conspiracy began when Mike Raucci, a former employee of Wyatt Oil, approached James McVeigh ¹ and asked him if he knew of anyone who wanted "to do" a large amount of oil. Raucci showed McVeigh a set of keys to the Wyatt Company terminal tanks, yard and security system. McVeigh stated that the defendant might be of some assistance in the matter. McVeigh then "discussed it" with the defendant. The defendant agreed with McVeigh that Ralph "Rocky" Bello, who had also been in the oil business for a number of years, would have the necessary cash and storage facilities.

The defendant proceeded to act as intermediary between Raucci, McVeigh and Bello in determining the price to be paid for the stolen oil. The four finally decided that Bello would pay fifty cents per gallon of oil, some thirty cents per gallon below market price.

The group's discussions then turned to the problem of transporting the oil. The defendant suggested to Bello that a trucking firm might be willing to haul the oil. It was decided that, in order to avoid detection, the burglary would be scheduled for October 2, 1980, the evening the Ali-Forman prizefight was scheduled to be telecast at the New Haven Coliseum. The group anticipated that many local residents would watch the screening. A detailed map was drawn up with alternate truck routes, designed to avoid suspicion caused by increased truck traffic.

A witness, James Schwartz, ² saw the defendant, Bello and McVeigh, in the yard at Bello's business some weeks before the theft. Bello approached Schwartz and asked him how many trucks could be "off-loaded" in the yard at one time. A few days before the theft, Schwartz again saw the defendant, Bello and McVeigh in Bello's yard.

During the day of October 2, 1980, prior to the theft, the defendant was with Bello in the West Haven yard. The defendant had advised Bello to replace the Jenkins valves in the oil unloading area with check valves, which would permit oil to be unloaded "a lot quicker." The two approached Raymond Bruneau, an employee of Farnham Environmental, who maintained pipes and fittings. Bruneau was asked about the possibility of replacing the valves.

The defendant returned to Bello's oil terminal that evening, before the theft began. In accordance with the plan, the defendant remained in Bello's yard when the first trucks arrived with the stolen oil. McVeigh observed the defendant "trying to get [the trucks] unloaded as fast as they could get unloaded." McVeigh stated that the defendant "was supervising the unloading."

Another witness, a truck driver named George Carranzo, saw the defendant in Bello's yard when he returned with his first load. He stated that the defendant was "the one that, in my opinion, was supervising me, telling me what had to be done to unload the truck." When defense counsel suggested on cross-examination that the defendant was in Bello's yard only to repair a pump, Carranzo responded, "I don't remember him repairing.... He was unloading the trucks.... That's what he was there for." Carranzo made three trips hauling oil from Wyatt to Bello's. By the third trip, he was suspicious of activities because "there were just too many trucks."

Another witness, James Galla, was also shuttling stolen oil between Wyatt and Bello's yard. During the evening, he observed the defendant standing on the dike in Bello's yard, monitoring the pumps transferring oil from the trucks to Bello's tanks. By night's end, Galla too was suspicious of the activities. "I thought something was up. Everybody was doing things quicker than usual."

McVeigh and Raucci kept pumping oil from the Wyatt terminal into trucks until 10 p.m. After they "closed up" the operation, McVeigh went to Bello's office with the oil meter tickets. While McVeigh sorted tickets, the defendant entered and had coffee with the two. Bello handed McVeigh an envelope with between $13,000 and $18,000 cash in it; less than full payment for the stolen oil.

On or about October 3, Bello gave the defendant additional cash in an envelope to pay McVeigh and Raucci for the stolen oil. Sometime after October 3, three checks for a total of $20,000 were drawn on the account of Rocky Bello and Sons. The three checks were made out to the defendant and signed by Rocky Bello. Shortly after the theft, McVeigh sent the defendant $5,000 more in cash.

I

The defendant's first claim is that the court erred in denying his motion for judgment of acquittal on the first and second counts of the information. ³ The defendant in effect asserts that while the evidence presented at trial may be sufficient to support his conviction on a third count of the information for the substantive crime of larceny in the first degree, such evidence is insufficient to support his convictions for conspiracy to commit larceny and conspiracy to commit burglary. We disagree.

General Statutes § 53a-48(a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy."

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt 'does not require a court to "ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt." ' (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, [443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) ] 'Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972) ]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.' (Emphasis in original.) (Footnotes omitted.) Jackson v. Virginia, supra [443 U.S. at], 319 " State v. Scielzo, 190 Conn. 191, 197-98, 460 A.2d 951 (1983).

The defendant asserts specifically that the state failed to prove the existence of an agreement, a necessary element in the crime of conspiracy. Our courts have stated that " '[t]he existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are "knowingly engaged in a mutual plan to do a forbidden act." ' " State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986); State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 (1970). It is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words "we have an agreement." We conclude that, from the testimony presented in the trial court, the state did meet its burden of providing evidence from which a jury could conclude that the defendant was "knowingly engaged in a mutual plan to do a forbidden act."

The defendant also challenges the existence of the specific intent necessary for a conviction for conspiracy under General Statutes § 53a-48. The state provided ample circumstantial evidence from which a reasonable jury could infer that the defendant intended to conspire to steal the Wyatt oil. The defendant's claim on appeal must fail. Conviction for conspiracy can be based on circumstantial evidence, for conspiracies, by their very nature, are formed in secret and only rarely can be proved other than by circumstantial evidence. State v. Vessichio, supra, State v. Holmes, supra, 150, 274 A.2d 153. Likewise,...