State v. Yury G., 207 Conn. App. 686

Background:

Defendant Yury G. and her husband had an October 5, 2016 domestic altercation after electricity was shut off; husband recorded events and defendant called police.
Husband alleged defendant struck him in the groin with her knee; both were arrested; defendant charged with disorderly conduct (Class C misdemeanor under § 53a-182(a)(1)).
Husband later signed an affidavit recanting/mitigating his complaint; the affidavit was admitted at trial as a full exhibit and he testified inconsistently about signing it.
Defendant requested a jury instruction on the infraction of creating a public disturbance (§ 53a-181a) as a lesser included offense; trial court denied the request and convicted defendant of disorderly conduct.
On appeal defendant raised four issues: (1) denial of lesser-included instruction under Whistnant; (2) prosecutorial discretion to charge identical‑element infraction vs. misdemeanor violates due process/equal protection; (3) same statutory scheme violates separation of powers; and (4) the court improperly limited the jury to using the husband’s affidavit only for impeachment instead of substantive Whelan use.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred in refusing lesser‑included instruction (infraction) under Whistnant	Request failed Whistnant; infraction cannot be submitted because evidence supports greater offense	Requested instruction met Whistnant and should have been given	Denied—the request failed Whistnant prong 4 because same proof supported both charges; jury could not rationally find defendant guilty only of the infraction
Whether prosecutorial discretion to choose between identical‑element infraction and misdemeanor violates due process/equal protection	Prosecutor’s discretion is constitutionally permissible; no selective discrimination shown	Discretion amounts to unconstitutional delegation creating unequal punishments	Denied—controlling precedent (Harden; Batchelder) permits prosecutorial choice absent discriminatory selection; claim fails Golding review
Whether that charging discretion violates Connecticut separation of powers by shifting judicial sentencing authority to executive	State: sentencing authority is shared across branches and discretion to charge does not unconstitutionally intrude on judiciary	Defendant: charging choice impermissibly impedes judiciary’s sentencing role	Denied—sentencing is a shared power in Connecticut; scheme does not exclusively invade judicial power; fails Golding review
Whether jury instructions improperly limited use of husband’s affidavit (Whelan) to impeachment only	Court’s charge adequately instructed jury to consider all testimony and exhibits; defendant failed to tie requested charges to specific evidence and did not preserve distinct Whelan request	Court limited affidavit’s use and should have given a Whelan instruction allowing substantive use	Denied—no abuse; overall charge told jurors to consider all exhibits and testimony; defendant failed Practice Book requirements and did not request a Whelan instruction tied to the affidavit

Key Cases Cited

State v. Whistnant, 179 Conn. 576 (establishes four‑part test for lesser included offense instruction)
State v. Marsala, 337 Conn. 55 (applied Whistnant; lesser‑included instruction denied where evidence compels greater offense)
State v. Harden, 175 Conn. 315 (trial court should not give lesser included instruction when greater and lesser have identical elements)
United States v. Batchelder, 442 U.S. 114 (prosecutorial choice between overlapping statutes with different penalties is permissible absent discriminatory application)
State v. Golding, 213 Conn. 233 (framework for appellate review of unpreserved constitutional claims)
State v. Whelan, 200 Conn. 743 (prior written statement may be used substantively under circumstances; jury instruction principle)
State v. McCleese, 333 Conn. 378 (sentencing is a power shared among branches; legislative definition of penalties is proper)
Sansone v. United States, 380 U.S. 343 (lesser‑offense instruction improper when factual issues are identical for lesser and greater offenses)