State v. Vitale, (AC 22224).

• Court: Appellate Court of Connecticut
• Writing for the Court: FOTI, J.
• Citation: 76 Conn. App. 1,818 A.2d 134
• Parties: STATE OF CONNECTICUT v. JOHN E. VITALE, JR.
• Decision Date: 01 April 2003
• Docket Number: (AC 22224).

76 Conn. App. 1
818 A.2d 134

STATE OF CONNECTICUT
v.
JOHN E. VITALE, JR

(AC 22224).

Appellate Court of Connecticut.

Argued January 6, 2003.

Officially released April 1, 2003.

Foti, Dranginis and Bishop, Js.

76 Conn. App. 2

Michael A. D'Onofrio, special public defender, for the appellant (defendant)

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, John E. Vitale, Jr., appeals from the judgment of conviction, rendered after a jury trial, of forgery in the second degree in violation of General Statutes § 53a-139 (a)(1),¹ and, following his

76 Conn. App. 3

conditional plea of nolo contendere,² of being a persistent felony offender in violation of General Statutes § 53a-40 (a). The trial court sentenced the defendant to a ten year term of incarceration. On appeal, the defendant claims that the court (1) abused its discretion by admitting evidence of his prior convictions for purposes of impeachment, (2) improperly denied his motions for a mistrial and (3) improperly denied his motion to dismiss the part B information. We affirm the judgment of the trial court

The jury reasonably could have found the following facts. In 1999, property at 169 Fairlawn Avenue in Waterbury was owned by the defendant, subject, however, to a life estate in his father and stepmother, Eleanore Vitale, the victim. On November 16, 1999, the defendant's father died, leaving the victim with the remaining life interest in the property.

Shortly thereafter, the defendant sought to use that property to secure loan proceeds, with which he intended to purchase a business. The defendant discovered, however, that his stepmother's life interest had to be removed from the property before he could give a mortgage on the property as security for the loan. Through the services of an attorney, the defendant obtained an unexecuted quitclaim deed transferring the victim's life interest to himself. The defendant took the deed and later returned it, fully executed with what purported to be the victim's signature, to the attorney. The victim had not signed the deed.

76 Conn. App. 4

The defendant obtained a loan of $69,000 secured by a recorded mortgage from himself to Aames Funding Corporation doing business as Aames Home Loan (Aames). The quitclaim deed releasing the life interest was recorded on January 5, 2000, immediately before the recording of the defendant's mortgage on the property

On March 1, 2000, the victim first learned of the mortgage on the property and that the defendant had received a $69,000 loan secured by the property. After she confronted the defendant, the victim threatened to tell the police what had happened. The defendant, during a telephone conversation that the victim recorded, implored her not to go to the police. The defendant told the victim that he would remedy the situation by returning her life interest to her. Nevertheless, the victim went to the police with her attorney and filed a complaint. Shortly thereafter, the defendant again spoke to the victim and begged her not to pursue the matter. When she asked him why he had undertaken his fraudulent actions, he answered that "it got out of hand."

Police investigators thereafter investigated the complaint. Neither the notary nor the witness to the signing of the quitclaim deed could recall anything about the person whose signature had been notarized. Police found discrepancies between the signature appearing on the deed and the victim's signature. Furthermore, the victim's first name was misspelled on the quitclaim as "Eleanor"; the victim spells her name "Eleanore."

On March 6, 2000, the defendant executed a quitclaim deed that transferred back to the victim her life interest in the property. The defendant subsequently failed to make payments on the note and Chase Manhattan Bank (Chase), Aames' successor in interest, commenced a foreclosure action against the defendant and the victim.

76 Conn. App. 5

The court in that foreclosure action held, despite the fact that Chase's mortgage interest was recorded prior to the date that the defendant quitclaimed the victim's interest back to her, that in light of the fraudulent nature of the December 7, 1999 quitclaim deed, the victim's interest had priority over Chase's interest. Because of the fraudulent nature of the quitclaim deed, a title insurance company paid Chase the amount of the mortgage.

The defendant was arrested and charged with the crimes with which he stands convicted. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court abused its discretion by allowing his two prior felony murder convictions that were admitted into evidence for purposes of impeachment as "two convictions of felonies involving larcenous intent."

The following additional facts underlie that claim. In 1980, the defendant was convicted, inter alia, of two counts of felony murder predicated on the crime of robbery. In 1990, he received a lifetime parole. The defendant filed a motion in limine, seeking to preclude the state from introducing evidence of the felony convictions and arguing that they were remote in time, highly prejudicial because of the violence involved and that they lacked probative value as to the issue of his credibility. The court determined that the prior felonies differed significantly from the crime charged, thereby minimizing the prejudicial effect of such evidence. The court also reasoned that because the prior convictions were predicated on the crime of robbery, they bore on credibility and that their probative value outweighed their prejudicial effect. In that initial ruling, the court indicated that it would allow the state to refer to the prior felonies only as prior convictions for robbery.

76 Conn. App. 6

Thereafter, the defendant, after inquiry by the court as to whether he would admit to having been previously convicted of two felonies involving larcenous intent, stated that he would prefer that the court limit the state to referring to two "felony convictions." The defendant went on to state that "if the court decides, he will admit to two previous convictions that include larcenous intent." The court then allowed the state to make such reference to felony convictions that involved larcenous intent, but disallowed questions about the specific charges, sentencing or parole.

The defendant, when testifying, admitted both on direct and cross-examination that he had twice previously been convicted of felonies involving larcenous intent. The court, in its final charge, instructed the jury that the prior felony convictions were offered and admitted into evidence only for the purpose of credibility and that the jury could not use them as evidence of the defendant's guilt or to infer that because of those convictions he was likely to have committed the crime for which he was on trial. The defendant posits in his reply brief that "the classification of these convictions as felonies involving larcenous intent created more prejudice to the defendant than simply calling the offense by its name [felony murder] or preferably referring to them as unspecified felonies carrying a penalty greater than one year."³

Our standard of review is limited. A court's decision in acting on a motion to exclude a witness' prior record, offered to attack his credibility, will be upset only if the court abused its discretion. State v. Harrell, 199 Conn. 255, 261, 506 A.2d 1041 (1986).

76 Conn. App. 7

As a preliminary matter, "evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible. . . . There are, however, several well recognized exceptions to this rule, one of which is that [a] criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue. . . . In its discretion a trial court may properly admit evidence of prior convictions provided that the prejudicial effect of such evidence does not far outweigh its probative value. . . .

"Our Supreme Court has identified [t]hree factors [that] should be examined to determine whether a prior criminal conviction . . . has been [properly] admitted: (1) the extent to which admission is likely to prejudice the defendant's cause; (2) the significance of the prior crime as bearing on the defendant's truthfulness; and (3) the remoteness in time of the prior conviction. . . . The trial court has wide discretion in this balancing determination and every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . .

"As to the first criterion, a high degree of prejudice can be expected when the prior crime is quite similar to the crime charged because of the jury's tendency to believe that if he did it before, he probably did it again." (Citations omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 261-62, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). In the present case, the degree of potential prejudice...