STATE OF CONNECTICUT v. ELVIN R. CABALLERO
(AC 37810)
Sheldon, Beach and Pellegrino, Js.
Argued January 17—officially released April 25, 2017
(
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the
Sean P. Barrett, assigned counsel, with whom, on the brief, was Peter G. Billings, assigned counsel, for the appellant (defendant).
Timothy F. Costello, assistant state‘s attorney, with whom, on the brief, were David S. Shepack, state‘s attorney, and David R. Shannon, senior assistant state‘s attorney, for the appellee (state).
Opinion
The jury reasonably could have found the following facts. On or about April 21, 2011, the defendant traveled to the West Cornwall post office. Upon entering the post office, the defendant asked the only postal clerk working that day, Jenna Bascetta-Brown, if he could fill out an application for a United States passport. Bascetta-Brown left the front desk for approximately fifteen to thirty seconds to retrieve the application. While she was temporarily out of sight, the defendant reached over the counter, opened an unlocked drawer, and removed a block of blank United States Postal Money Orders (money orders). Bascetta-Brown returned with the passport application, but the defendant left the post office without filling out the form.
The defendant later contacted his friend, Jonathan Perez, who lived in New Jersey. Perez, in turn, contacted Emily Guzman, who also resided in New Jersey, and told her that if she would help the defendant “cash some checks,” the defendant could pay her money in return. The defendant, Perez, and Guzman inscribed the blank stolen money orders using a home printer to make them look as though they had been processed by the post office. Each money order was imprinted to show a value of $388.
On April 22, 2011, the defendant, Perez, and Guzman traveled from New Jersey to Connecticut in a rental car in order to cash the money orders. They appeared at nine different post office locations throughout the state, including New Haven, Branford, East Haven, Milford, Bridgeport, and West Haven. At each location, Perez filled out the “from” section of the money order using a fake name and address. Guzman wrote the “to” section using her own name and address, and wrote “child support” on the memo line. Guzman then entered the post office, presented the money order and her photo identification, and cashed the money order for the inscribed sum of $388. Afterward, the defendant kept $300 for himself, and Guzman and Perez alternated keeping the remaining $88 from each cashed money order.
Later that week, Bascetta-Brown noticed that a stack of thirty blank money orders was missing from the West Cornwall post office. She contacted United States Postal Inspector Jason Bourdeau and reported the missing money orders, along with a description of the defendant.1 Bourdeau was able to trace the unique
The following procedural history is also relevant to the defendant‘s appeal. On July 29, 2013, the state filed a short form information charging the defendant with one count of larceny in the second degree in violation of General Statutes
On January 17, 2014, the state filed a substitute short form information charging the defendant with one count of conspiracy to commit larceny in the third degree in violation of
Upon filing the substitute short form information, the prosecutor made the following statement in open court: “We‘re reducing the charge to larceny in the third degree, so it‘s between over $2000 and under $10,000. . . . [The defendant] was charged with larceny in the second degree, he defrauded a public community, he stole thirty—the facts of the case [are] that this started with the theft of thirty money orders that can be worth up to $1000 each. I downgraded that larceny charge to third degree to make this case as quick and efficient as I can.” The defendant then reiterated his request for a bill of particulars, and the court, Ginocchio, J., stated that the motion would be heard on the defendant‘s next court date.
The defendant‘s next court appearance was on February 6, 2014, at which time the defendant asked the court, Danaher, J., to address his previously filed motion for a bill of particulars and request for essential
The state filed a long form information on February 10, 2014, which contained a scrivener‘s error.5 It filed an amended long form information on March 7, 2014, to correct that error. The amended long form information charged the defendant with one count of conspiracy to commit larceny in the third degree in violation of
The amended long form information did not specify which subdivision of
On March 10, 2014, the trial court, Danaher, J., issued a memorandum of decision in which it addressed several of the defendant‘s outstanding motions, including his motion for a bill of particulars and request for essential facts. As to those motions, the court stated: “On February 10, 2014, the state filed a long form [information] including, inter alia, the information required by Practice Book § 41-21. No further action on this motion is required.”
Subsequently, on March 19, 2014, the court, Danaher, J., held a pretrial hearing. The court stated that it wanted to confirm under which subsections of the various statutes set forth in the amended long form information the state was proceeding. The court asked the state if it would be proceeding under
The defendant‘s trial began on May 28, 2014, more than two months after the pretrial hearing held on March 19, 2014. Prior
At the close of the state‘s case, the defendant moved for a judgment of acquittal. He argued that the state had failed to prove that the larceny or forgeries had occurred in the Litchfield judicial district, and argued that the theft of blank postal money orders only amounted to larceny in the sixth degree. The defendant conceded, however, that he was “being charged for [a] government instrument” and asserted that the postal money orders were not government instruments but were, instead, “commercial.” The court, Ginocchio, J., denied the defendant‘s motion for judgment of acquittal.
Following deliberations, the jury found the defendant guilty on all counts. The court, Danaher, J., sentenced the defendant to a total effective sentence of fifteen years incarceration, execution suspended after four years, followed by five years of probation, all of which would be served consecutively to any other state or federal sentences. This appeal followed. Additional facts will be set forth as necessary.
We first set forth the applicable legal principles and standard of review. “A motion for a bill of particulars is addressed to the sound discretion of the trial court. . . . [A]n abuse of discretion in the denial of a motion for a bill of particulars can be premised only upon a clear and specific showing of prejudice to the defense. . . . The defendant has the burden of showing why the additional particulars were necessary to the preparation of his defense . . . .
“The sixth amendment to the United States constitution and
Our Supreme Court has, on numerous occasions, adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged in reviewing the denial of a motion for a bill of particulars. State v. Spigarolo, 210 Conn. 359, 384, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also State v. Vumback, supra, 263 Conn. 228; State v. Kyles, 221 Conn. 643, 654, 607 A.2d 355 (1992). For example, in State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263 (1973), the court permitted the state‘s attorney, following a motion by the defendant for a bill of particulars, to “read into the record a detailed statement of the facts claimed to constitute the crime charged . . . .” The court then denied the motion for a bill of particulars. Id., 625. On appeal, our Supreme Court reasoned that when “a defendant is fairly informed of the charges against him so that he may prepare a proper defense, a bill of particulars is unnecessary and may properly be denied.” Id., 625. The court emphasized
In the present case, the defendant contends that the court‘s failure to grant his motion for a bill of particulars caused him to lack constitutionally sufficient notice that he was being charged under subdivision (3) of
Thus, the defendant was fully apprised of the charges against him prior to the commencement of his trial. If the defendant had believed he was not given sufficient notice of the charges, he could have renewed his motion for a bill of particulars and could have objected to the court‘s proposed jury instructions before his trial. He failed to make use of either of these procedural safeguards.
Furthermore, the defendant has not demonstrated, as he must, that he was prejudiced by the court‘s failure to grant his motion for a bill of particulars. “[A] defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. . . . To establish prejudice, the defendant must show that the information was necessary to his defense, and not merely that the preparation of his defense was made more burdensome or difficult by the failure to provide the information.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Vumback, supra, 263 Conn. 227–28.
The defendant claims that the ambiguity in the state‘s information hindered his ability to prepare his defense because he did not know which subdivision of
The judgment is affirmed.
In this opinion the other judges concurred.