4 Conn. Cir. Ct. 424 | Conn. App. Ct. | 1967
At the time of his arraignment, the defendant entered a plea of guilty to a first count charging improper parking and a plea of not guilty to a second count of operating while his license and right to operate were under suspension. General Statutes § 14-215. He was tried by the court and found guilty, whereupon he was arraigned on a part two of the information charging him with being a second offender of the charges alleged in the second count, to which charge he entered a plea of guilty and was so found. He has appealed and has assigned error in that he was not formally arrested for operating while under suspension and therefore was not properly before the court; in the denial of his motion to correct the finding; and in that he was immune from prosecution, for his operation was under the direction of a uniformed officer.
We first consider the question of jurisdiction. The defendant-claims that he was arrested solely for improper parking and not for operating while under suspension. It is true that when he was apprehended he was charged with improper parking. Before he was arraigned, however, it was ascertained that his right to operate a motor vehicle, at the time of his apprehension, was. then under suspension. When he appeared in court, that allegation was added as a second count. The records indicate that the original arrest was in August of 1965. His
The defendant contends that since he was originally arrested for improper parking and no formal arrest was made for operation under suspension, the court lacked jurisdiction of the person as to the latter charge and he was therefore not lawfully before the court on that charge. That the court had jurisdiction of the subject matter is conceded. The defendant’s claim should have been raised prior to the entry of his plea of not guilty. “Under modern criminal procedure, the failure to raise a claim of lack of jurisdiction of the person until after the entry of a plea of guilty or not guilty is strong evidence of a consent to the jurisdiction of the person or, to use the language of Church v. Pearne, 75 Conn. 350, 355 ... , of a Voluntary submission’ to the jurisdiction of the court over the person.” State v. Licari, 153 Conn. 127, 130. “The burden of claiming and proving, however, that consent rendered lawful an otherwise illegal seizure of person or property is on the state.” Ibid. The defendant’s grounds for a preliminary motion attacking jurisdiction were known or could reasonably have been ascertained by him at the time of arraignment, certainly at the time of trial. State v. Gionfriddo, 154 Conn. 90, 92. He raises no question that these allegations were unknown to him or that he was taken by surprise. He remained silent until after the commencement of the trial. State v.
The corrections sought in the finding are claimed on the ground that certain facts were found without evidence and should have been stricken, while other facts, admitted or undisputed, should have been added. “A fact not contradicted does not necessarily become an undisputed fact which is required to be added to the finding. . . . The trier is the final judge of the credibility of a witness and may disbelieve all or any part of his testimony.” Chazen v. New Britain, 148 Conn. 349, 352. The finding as made is amply supported by the evidence, and no material corrections are warranted. Furthermore, the corrections sought are not essential to the defendant’s remaining assignments of error.
The following facts were found by the court: On August 28, 1965, Officer Moye of the Greenwich police department observed an automobile improperly parked on a public street and with the aid of another officer pushed the vehicle into a private parking lot. The defendant appeared from a nearby diner and produced a North Carolina driving license. The vehicle was owned by a rental agency. A uniform traffic summons was issued, and since
One of the conclusions was that the driving of the car by the defendant from the place of arrest to police headquarters constituted the operation of a motor vehicle by the defendant while his right to operate was under suspension. Upon a finding of guilty by the court, the defendant was arraigned on a part two of the information charging him with being a second offender, to which charge he entered a plea of guilty and was found guilty.
The defendant further assigns error in the court’s conclusion that his operation after his arrest and at the direction of a police officer constituted a violation of § 14-215 of the General Statutes. He argues that this conclusion was an error in law because his operation was at the direction of a police officer and therefore involuntary. He contends that had he refused to obey the order he would have subjected himself to a further arrest for failure to obey an officer. General Statutes § 14-223.
Upon his arrest, the defendant had the right to remain silent. State v. Ferrone, 97 Conn. 258, 266; State v. Tryon, 145 Conn. 304, 308. The right to remain mute encompassed any compulsion to reveal his motor vehicle history, even if the concealment was intentional.
In driving to headquarters, the defendant was following the order of an officer, and in so doing it would seem that his operation was other than voluntary, for he was then under arrest and subservient to the orders of an officer. No cases have been cited, and we have been unable to discover any reported cases on this subject. The facts do not bring the matter squarely within the doctrine of entrapment. State v. Marquardt, 139 Conn. 1, 5. We cite, however, two cases involving entrapment which cast some light on the subject. In Raley v. Ohio, 360 U.S. 423, the defendant appeared as a witness before a commission investigating un-American activities and was told by the commission that he had the .right to rely on the privilege against self-incrimination afforded him by the Ohio constitution. The commission acted in good faith, with no intent that prosecution would follow. Relying on the advice, he refused to answer
The court further concluded, however, that the defendant, upon leaving the police headquarters, drove off in his car. The immunity which had previously existed had at that time come to an end, and the defendant’s operation was then voluntary, under no order of a law-enforcement agency, and a violation of the statute.
The defendant also assigns error in that the records do not indicate the actual ownership of the motor vehicle. Registration was not an issue, nor was ownership a required element of the violation. Section 14-215 forbids the operation of “any motor vehicle” during the period of suspension.
Finally, the defendant assigns error in the conduct of the trial. He claims that after the state had rested he moved for dismissal, for the reasons we have considered. At this point, the prosecutor stated that he had committed an error in resting since there was one other element he wished to put in evidence. The defendant objected to the reception of additional evidence and, upon being overruled, took an exception. The additional evidence then received related to the suspension of the defendant’s right to operate a motor vehicle. We cannot find that State v. Gionfriddo, 154 Conn. 90, 97, supports the defendant’s contention that he did
There is no error.
In this opinion Pruyn and Kinmonth, Js., concurred.
“Sec. 14-223. disobeying orders op oppioer. Whenever the operator of any motor vehicle fails promptly to bring his motor vehicle to a full stop upon the signal of any officer in uniform or prominently displaying the badge of his office, or disobeys the direction of such officer with relation to the operation of his motor vehicle, he shall be fined not less than five nor more than twenty-five dollars for a first offense, and not less than ten nor more than fifty dollars for any subsequent offense.”
“Sec. 14-215. operation while registration or license is refused, suspended or revoked. No person . . . whose operator’s license or right to operate . . . has been suspended or revoked, shall operate any motor vehicle during the period of such . . . suspension or revocation. . . .”