Greer v. State

310 A.3d 401

224 Conn.App. 1

Daniel GREER

v.STATE of Connecticut

(AC 46055)

Appellate Court of Connecticut.

Argued November 15, 2023

Officially Released February 27, 2024

David T. Grudberg, New Haven, for the appellant (petitioner).

Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Seth R. Garbarsky and Craig P. Nowak, supervisory assistant state’s attorneys, for the appellee (respondent).

Cradle, Westbrook and DiPentima, Js.

WESTBROOK, J.

₃The petitioner, Daniel Greer, appeals following the granting of his petition for certification to appeal from the judgment of the trial court denying his petition for a new trial based on newly discovered evidence. On appeal, the petitioner claims that the court improperly concluded that the proffered new evidence likely would not lead to a different result at a new trial because the court (1) failed to give sufficient weight to an alleged posttrial statement by the victim that the petitioner asserts raises doubt regarding an essential element of the crimes underlying his conviction, and (2) erroneously determined that, even if a new trial was granted, it was unlikely that the defense would introduce the new evidence because it was highly prejudicial to the petitioner and, thus, would undermine, rather than aid, his defense. For the reasons that follow, ₄we are not persuaded that the court abused its discretion by denying the petition for a new trial. Accordingly, we affirm the judgment of the court.

This court, in its decision affirming the petitioner’s judgment of conviction on direct appeal, set forth the following relevant facts and procedural history underlying the petitioner’s criminal case. See State v. Greer, 213 Conn. App. 757, 759–64, 279 A.3d 268, cert. denied, 345 Conn. 916, 284 A.3d 299 (2022), cert. denied, — U.S. —143 S. Ct. 1061, 215 L. Ed. 2d 282 (2023). "The [petitioner], who is a rabbi, founded Yeshiva of New Haven, Inc. (yeshiva), a private, Orthodox Jewish school, and served as a dean, rabbi, and teacher at the yeshiva. The victim, E,¹ attended the yeshiva for high school, beginning his freshman year in August or September, 2001, when he was thirteen years old. E’s birthday is in October, and he turned fourteen years old during his freshman year. …

"In 2002, when he was fourteen years old, E returned to the yeshiva for his sophomore year. At some point during the beginning of the school year, the [petitioner] told E to meet him at an apartment adjacent to the school, and E complied. At the apartment, the [petitioner] offered E [snacks] and an alcoholic drink …. They proceeded to drink and talk about E’s family and his future, and E began to get emotional and his head felt ‘fuzzy …. ’ At some point, the [petitioner] touched E’s thigh or crotch area and attempted to kiss him on the lips. When E pulled away and asked the [petitioner] what he was doing, the [petitioner] said that ‘[i]t wasn’t a big deal and that this is what he does to his kids.’ Nothing further transpired, and E returned to his dormitory.

₅"After the initial incident at the apartment, E and the [petitioner] met at least once a week during his sophomore year at various locations—often in New Haven or at a motel in Branford—and engaged in oral or anal sex. During these encounters, the [petitioner] and E often would consume alcohol. E acknowledged that ‘the encounters meld together’ but was ‘very sure’ that he and the [petitioner] engaged in anal and oral sex during his sophomore year, during which time he was fourteen and fifteen years old. He testified that, during that period, he and the [petitioner] frequently performed oral sex on each other, that he performed anal sex on the [petitioner] ‘many’ times, and that, when the [petitioner] attempted to perform anal sex on E, E forced him to stop because it was too painful. After these encounters, E would feel ‘shame, guilt, [and] confusion.’ At the yeshiva, the [petitioner] gave E preferential treatment and would not yell at him as he regularly did with other students. When E attempted to end the sexual relationship, the [petitioner] stopped giving him preferential treatment and became ‘nasty’ instead of ‘nice and charming …. ’ The [petitioner] continued to engage in sexual acts with E after he turned sixteen years old in October, 2003.

"After graduating in 2005, E went to an Orthodox yeshiva in Israel to continue his Jewish studies and met S, his future wife …. In 2006, E told S that the [petitioner] had molested him during high school, but he did not provide any details about the abuse. In the summer of 2006, E returned to Connecticut and met the [petitioner] at the Branford motel, where they had their last sexual encounter.

"In December, 2007, E and S were married, and the [petitioner] was one of the witnesses at the ceremony, which is a position of honor. E explained that he gave the [petitioner] this honor because he respected the ₆[petitioner] and ‘still felt part of the New Haven community ….’ For several years following their marriage, E and S would travel to New Haven for Jewish holidays, where they would share meals with members of the yeshiva community, including the [petitioner]. When E and S had a son in June, 2010, E asked the [petitioner] to hold the baby during the circumcision, which is also a position of honor.

"In 2013, E and S bought a house in New Jersey, and E found a rabbi in that community. Around that time, E stopped traveling to New Haven and communicating with the [petitioner]. At some point before 2016, E disclosed the abuse to his therapist and two family friends, one of whom was working at the yeshiva. In May, 2016, E filed a civil action in federal court against the [petitioner] seeking money damages stemming from the sexual abuse.² In August, 2016, while the civil action was pending, E reported the sexual abuse to the New Haven Police Department.

"On July 26, 2017, the [petitioner] was arrested and charged with four counts of sexual assault in the second degree under General Statutes § 53a-71 (a) (1) and four counts of risk of injury to a child under [General Statutes] § 53-21 (a) (2). In the operative long form information, the state alleged that the charged conduct occurred when E was fourteen and fifteen years old, ‘at the city of New Haven on divers dates between 2002 up to October 27, 2003’ …. [T]he sexual assault and risk of injury charges were premised on the same conduct—anal intercourse and fellatio.

"The case proceeded to a jury trial, and, at the close of evidence, defense counsel moved for a judgment of ₇acquittal as to the charges of sexual assault in the second degree on the ground that the prosecution was barred by the statute of limitations set forth in § 54-193a because E had not notified a police officer or state’s attorney within five years after the commission of the offense. After a brief recess, the state conceded that the sexual assault charges are barred under § 54-193a, and the court granted the motion for a judgment of acquittal as to the four counts of sexual assault in the second degree …. Thereafter, the state filed a new information limited to the four counts of risk of injury to a child, and the jury found the [petitioner] guilty of those charges."³ (Footnote added; footnote in original; footnotes omitted.) Id., at 759–63, 279 A.3d 268. The court thereafter sentenced the petitioner to twenty years of incarceration, execution suspended after twelve years, followed by ten years of probation. Id., at 764, 279 A.3d 268.

On November 12, 2021, the petitioner commenced the underlying action pursuant to Practice Book § 42-55 and General Statutes § 52-270.⁴ In the operative ₈amended petition for a new trial, filed on September 28, 2022,⁵ the petitioner argued that he was entitled to a new trial on the basis of newly discovered evidence. According to the petitioner, the new evidence, if credited by a jury, would support a finding that the petitioner "was factually innocent of the charges against him."

The purported new evidence came to light as a result of testimony given by another rabbi, Aviad Hack, during a deposition in the federal civil lawsuit. Hack had "deep familiarity" with both E and the petitioner. Hack had been the assistant dean for the yeshiva at the time E attended, and, according to Hack, at the same time that the petitioner had been abusing E, the petitioner also was involved in a sexual relationship with Hack that had started when Hack himself was a student at the yeshiva. The petitioner argued that Hack’s testimony at a new trial would establish "with certainty" that any sexual misconduct by the petitioner toward E could not have begun until after E’s sixteenth birthday. An affidavit sworn by Hack and dated October 29, 2021, was attached to the original petition for a new trial. In this affidavit, Hack averred that he had given deposition testimony in E’s federal civil action but that he later evaded service of process in both the federal action and the state court criminal trial. He further stated in his affidavit that, "to my knowledge, no acts of misconduct by [the petitioner] toward [E] occurred prior to [E’s] 16th birthday. The first such act, to my memory, occurred in or about January, 2004." (Emphasis added.) It was an essential element of the risk of injury to a child counts of which the petitioner was convicted that the child be "under the age of sixteen years …. "₉(Emphasis added.) General Statutes § 53-21 (a) (2).⁶ It is undisputed that E was sixteen years old in January, 2004.

The court, Hon. Jon C. Blue, judge trial referee, conducted a trial on the petition for a new trial on July 20 and September 23, 2022. In support of his petition, the petitioner presented testimony from himself and Hack, who testified, inter alia, regarding his civil deposition testimony and the factual basis for the statements in his affidavit regarding E’s age. The respondent, the State of Connecticut, called...