187 Conn. App. 498
Conn. App. Ct.2019Background
- Victim S reported in 2015 that defendant Bernard Peluso sexually assaulted her multiple times when she was a child living in the same condominium complex (incidents occurred while she was in elementary school).
- Police statement by S indicated the assaults occurred when she was in fifth grade; the long-form information charged dates as 2010–2011.
- At trial S testified the assaults occurred in third grade (2008–2009). Defendant had moved out of the complex in 2010 and moved for judgment of acquittal based on the charged timeframe.
- The state moved during trial to amend the information to conform to S’s trial testimony (2008–2009); the court granted the amendment and denied the motion for acquittal.
- Defendant requested a five-week continuance to investigate the new time frame; the court offered one week (defense later accepted three days). Jury convicted on seven counts; sentence later corrected as to probation vs special parole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state had "good cause" under Practice Book §36-18 to amend information during trial | State: victim’s pretrial statements gave an imprecise timeframe; victim’s trial testimony refined dates—amendment merely conformed charges to evidence and was justified in child sexual-assault context | Peluso: prosecutors knew before trial that dates could not be 2010–2011; state could and should have amended earlier, so no good cause for a mid-trial amendment | Court: No abuse of discretion—child sexual-assault cases often lack precise dates; pretrial info was imprecise and state could not reasonably have alleged the narrower timeframe earlier; good cause shown |
| Whether amendment prejudiced defendant’s substantive rights (notice and ability to defend) | State: defendant had notice the alleged conduct occurred while he lived in the complex and was aware of the operative timeframe regardless of specific dates | Peluso: entire defense relied on showing he did not live in the complex during charged dates; late amendment deprived him of adequate notice and time to prepare (requested five weeks) | Court: No prejudice—time was not an element, defendant did not assert alibi, and he knew the relevant timeframe; one-week continuance (later shortened by agreement) was adequate |
| Whether court abused discretion in granting only a one-week continuance after amendment | State: trial court may require the moving party to justify continuance length; defense did not give specific reasons for five weeks | Peluso: requested presumptively reasonable continuance and burden should remain on state to rebut | Court: No abuse—defense failed to articulate specific needs for five weeks; burden is on movant to justify continuance and trial court acted within discretion |
| Legality of sentence re: probation for class A felony | State conceded error and corrected sentence during appeal | Peluso: probation for class A felony unlawful; requested correction | Moot on appeal—sentence issue corrected by state consistent with parties’ agreement |
Key Cases Cited
- State v. Ayala, 324 Conn. 571 (Conn. 2017) (sets standards for amending an information after trial commencement under Practice Book §36-18)
- State v. Grant, 83 Conn. App. 90 (Conn. App. 2004) (permits amendment during trial in child sexual-assault cases when victim’s testimony narrows timeframe)
- State v. Victor C., 145 Conn. App. 54 (Conn. App. 2013) (good cause found where victim could not recall dates and pretrial materials were imprecise)
- State v. Jordan, 132 Conn. App. 817 (Conn. App. 2012) (state must do more than bare assertion when seeking to amend to conform to evidence)
- State v. Wilson F., 77 Conn. App. 405 (Conn. App. 2003) (court may consider whether more diligent pretrial investigation could have produced a precise timeframe)
- State v. Enrique F., 146 Conn. App. 820 (Conn. App. 2013) (prejudice analysis focuses on whether defendant had sufficient notice to prepare an adequate defense)
- State v. Victor O., 301 Conn. 163 (Conn. 2011) (limits on probation versus special parole for class A felony sentencing)