57 Conn. App. 64 | Conn. App. Ct. | 2000
Opinion
This appeal arises from a judgment of revocation of probation after a hearing held pursuant to General Statutes § 53a-32 (a).
The following facts, adduced at the probation hearing, are relevant to this appeal. On February 20,1998, the
On March 18, 1998, the defendant was arrested after banging on the door of Biggs’ home, trying to get in the house through the windows when she refused him access, and subsequently throwing objects through the rear passenger side window and back windshield of a motor vehicle owned by Biggs’ Mend, Eric Torres. The defendant also was accused of crashing his car into the right front area of Biggs’ vehicle. The defendant was charged with criminal mischief in the first degree in violation of General Statutes § 53a-115, reckless driving in violation of General Statutes § 14-222, criminal trespass in the third degree in violation of General Statutes § 53a-109 and breach of the peace in violation of General Statutes § 53a-181. Thereafter, the defendant was charged with violating his probation based on the March 18, 1998 arrest.
The following testimony was adduced at trial. On March 18, 1998, the defendant went shopping with Biggs, by whom he has two children. They later returned to her home, and the defendant then went out again. Upon his return, he observed Torres’ car outside the apartment building and, upon entry, found Biggs and Torres in bed. The defendant yelled and cursed at Torres, then left the apartment and got into his car to leave. The defendant was followed outside by Torres, who hit the rear passenger window of the defendant’s vehicle with a baseball bat. In trying to avoid further blows,
Thereafter, as Torres was going back inside the residence, the defendant got out of his car, threw an object
The court found that the defendant’s actions constituted breach of the peace and criminal mischief, as well as a threat against Biggs, and revoked his probation and imposed a sentence of thirty-three months. This appeal followed.
The defendant claims first that the court improperly found that he violated the terms of his probation because the state did not allege that he had threatened Biggs and did not prove by a fair preponderance of the evidence that he violated the conditions of probation in the manner alleged. The defendant argues that the state did not proceed on the theory that he threatened Biggs, and so the court found improperly that the defendant violated his probation for reasons “not stated in the four comers of the affidavit and notice.” We disagree.
To support a finding of probation violation, “the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his . . . probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.
“[U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf. General Statutes § 53-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the
“A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation . . . rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. . . . In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999).
Here, at the defendant’s violation of probation hearing, the state argued that it had proven by a fair preponderance of the evidence that the defendant had violated his probation, “[specifically, that the defendant violated the laws of Connecticut while on probation. The state’s position is that the defendant committed on March 18, 1998, a criminal mischief in the third degree, criminal trespass in the first degree, disorderly conduct and breach of [the] peace.” The defendant claims that because the state’s position did not include an allegation of threatening, the court determined improperly that
The notice to appear and complaint state specifically: “The police arrested the offender and charged him with criminal mischief [in the first degree], reckless driving, criminal trespass [in the third degree] and breach of [the] peace, violating the terms of his probation.” Although the defendant accurately points out that the state did not include threatening as a reason for proceeding with the revocation, in promulgating his claim, the defendant seems to ignore the fact that his actions were not only found by the court to have constituted threatening, but also breach of the peace and criminal mischief.
In its decision, the court stated: “Under all the facts and circumstances, the state has proven its case by [a] preponderance of the evidence. . . . [T]he defendant acted in a threatening manner toward the victim, Ms. Biggs, and ... he also at [a] minimum breached the peace . . . and [committed] criminal mischief because he damaged the property of another.” (Emphasis added.)
General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .” “ ‘Violent’ is defined as ‘characterized by extreme force’ and ‘furious or vehement to the point of being improper, unjust, or illegal.’ Webster, Third New International Dictionary.” State v. Lo Sacco, 12 Conn. App. 481, 490, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). It is reasonable to conclude that throwing an object, by the defendant’s own characterization, a brick, through a car window, is violent behavior. It was, therefore, reasonable for the court to conclude that the defendant
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation ....’'
General Statutes § 53a-62 (a) provides: “A person is guilty of threatening when (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.”
It is unclear what the object was because it is referred to in the record both as a cinder block and as a brick.