State v. Cote

136 Conn.App. 427

46 A.3d 256

STATE of Connecticut

v.Joseph COTE.

No. 32650.

Appellate Court of Connecticut.

Argued March 7, 2012.

Decided July 3, 2012.

Neal Cone, senior assistant public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan and Peter A. McShane, state's attorneys, for the appellee (state).

LAVINE, ROBINSON and BEAR, Js.

ROBINSON, J.

The defendant, Joseph Cote, appeals from the trial court's judgment of conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a–103 (a) and larceny in the second degree in violation of General Statutes (Rev. to 2009) § 53a–123 (a). ¹ On appeal, the defendant contends that (1) because Public Acts 2009, No. 09–138 (P.A. 09–138), inter alia, increased the monetary value of property and services stolen necessary to constitute larceny in the second degree after the defendant's arrest, but before his conviction, the court erred in refusing to apply the ameliorative change to the defendant, (2) there was insufficient evidence to warrant the conviction of burglary and (3) the trial court erred in not granting the defendant's renewed motion to sever the trials of the defendant and the codefendant, Albert Kalil. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 10 a.m., on January 27, 2009, Judith Stanton left her home located at 677 Pequot Trail in Stonington (Stonington property). When Stanton returned to her home at approximately noon, she realized that the telephone was no longer on the wall, the liquor cabinet was open and drawers had been opened in every room upstairs. Her jewelry box had been “torn apart,” and pocket watches that were on display in a cabinet were missing. Jewelry, several $2 bills, a federal note and six $100 bills were missing from the property.

Lucinda Wesson, a neighbor who lived directly across the street from the Stonington property, noticed a car she did not recognize parked on her street the morning of January 27, 2009. It was a dark-colored ² Saab convertible with a Massachusetts license plate. At that time, no one was in or near the car. Sometime later, Wesson went to the other side of her home, where she again saw the car because it was stationed outside her property. At this time, the passenger's side door was open, and a man was wandering in the middle of the street, appearing as if he were looking for something. The person driving the car said, “[g]et back into the car,” and the parties then left. Both of the individuals had a “very thick Massachusetts accent.” From her standpoint in her home, she believed the individual outside of the vehicle was approximately six feet tall,³ and she apprised police that he was of Italian descent, with black hair, between forty and fifty years old, weighing approximately 200 pounds and wearing a red sweatshirt type jacket.⁴

An investigation at the Stonington property revealed that force had been used to open the rear door. An area of weather stripping that ran down the exterior of the door had been manipulated or moved. The damage was consistent with forced entry into the house. There were footprints in the snow outside the Stonington property that ran from the front of the home to the back door; however, the police were not able to get foot impressions.⁵ The Stonington police filed a report with the National Crime Information Center detailing the incident.

On January 27, 2009, at approximately 1:45 p.m., Raymond Driscoll, the police chief in Richmond, Rhode Island, drove past the home of an acquaintance located on 122 Kingston Road in Richmond. The homeowner's truck was not on the property; however, there was a black Saab convertible with Massachusetts license plates parked in the yard. Driscoll observed two men standing in front of the garage door looking into the garage through a window. He then observed one of the men looking through a door at the front step next to the garage. This man was “alternately looking over his shoulder between looking into the house.” One of the men noticed that Driscoll was watching, and both men quickly walked to the Saab and drove away.

Driscoll followed the vehicle, which the entered an abandoned gasoline station parking lot. While Driscoll was calling for additional police support, the operator of the vehicle got out of the car and walked over to him. Driscoll asked the operator for his license and registration, which he retrieved. The license identified the operator of the vehicle as the defendant, and his passenger was identified as Kalil.⁶ The defendant volunteered that he and Kalil were on their way from a casino and had gotten lost. The defendant stated that they had stopped at the house to ask for directions and that they were running out of gasoline. Driscoll asked the defendant to turn the vehicle on, and Driscoll observed that the vehicle had more than one-quarter of a tank of gasoline remaining.

Kalil was wearing a “sweatshirt type jacket” and had a pair of bloodstained white athletic socks in his jacket pockets. There was also a cut on Kalil's hand. When asked why he had socks in his jacket pocket, Kalil responded that he had “bad feet.” Kalil stated that he and the defendant had been at the casino and that he had won $100. When asked why he was at the property located at 122 Kingston Road, Kalil stated that he and the defendant were lost and running out of gasoline and had stopped to ask for directions. When asked how they could be running out of gasoline when there were four gasoline stations within one and one-quarter miles of where they were located, Kalil responded that he did not know. When asked why they chose 122 Kingston Road to stop and ask for directions when there were no cars in the driveway, Kalil responded that he did not know.

After obtaining the defendant's consent, Driscoll searched the vehicle, finding some articles of clothing in the backseat, a pair of black gloves on the center console and a screwdriver, pry bar and a hatchet/hammer in the trunk. When the additional police support arrived, Driscoll went back to the house and noticed two sets of footprints in the snow leading from the front of the home to the back of the home and back to the front.⁷ He could see where an individual had stopped on the back step and presumably looked into the house through the back door. There did not appear to be any entry into the house.

Driscoll placed Kalil in the backseat of an officer's cruiser and asked the defendant to follow him to the police station. Driscoll drove into the parking area behind the station, and the defendant drove to the front of the station. After parking, Driscoll went to the front of the police station, and the defendant “was standing on the sidewalk in front of the Saab ... right in front of a row of small shrubbery that's in front of the police station.” Driscoll again obtained consent to search the defendant's vehicle, and he seized the hatchet/hammer, screwdriver and pry bar. When looking through the interior of the vehicle, the police seized a costume jewelry gemstone. The gemstone was approximately one-quarter inch by one-quarter inch in size and blue or green in color. It was found between the driver's seat and the passenger's seat in the Saab.

The Richmond police later recovered a bag in the bushes in front of the Saab parked in the police department parking lot. Inside the bag were various types of jewelry, including pocket watches, rings and bracelets. The bag contained approximately fifty pieces of jewelry. The bag also had a piece of jewelry with gemstones that matched the gemstone found inside the vehicle.

The Stonington police were notified that the Richmond police department had found individuals and goods that were consistent with the Stonington burglary. Stanton viewed the jewelry obtained by the Richmond police department and identified it as her property.⁸ The defendant and Kalil thereafter were arrested by the Stonington police and charged with burglary in the third degree and larceny in the second degree.

The jury found the defendant guilty of burglary in the third degree in violation of § 53a–103 (a) and larceny in the second degree in violation of § 53a–123 (a). The defendant was sentenced on August 5, 2010, to six years imprisonment on the larceny count and five years on the burglary count, to be served concurrently, for a total effective sentence of six years. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant's first claim on appeal is that after his arrest, but before his conviction, the General Assembly, in P.A. 09–138, amended § 53a–123 to increase the value of property taken for the commission of larceny in the second degree and that the court erred in refusing to apply the ameliorative change to the charge against him. We disagree.

At the time the defendant committed the offense in January, 2009, General Statutes (Rev. to 2009) § 53a–123 provided in relevant part: “(a) A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a–119, and ... (2) the value of the property or service exceeds five thousand dollars....” ⁹ The General Assembly passed P.A. 09–138, entitled, “An Act Concerning Larceny,” which, inter alia, increased the value required for an offense constituting larceny in the second degree. At the time of the defendant's conviction, § 53a–123 had been amended to provide in relevant part: “(a) A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a–119, and ... (2) the value of the property or service exceeds ten thousand dollars....” General Statutes § 53a–123 (a), as amended by Public Acts 2009, No. 09–138, § 2. The defendant took $8000 worth of goods from the Stonington property. Under the statutory regime at the time of the defendant's...