State v. Njoku

STATE OF CONNECTICUT v. EDWIN NJOKU

AC 42308

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Submitted on briefs October 6, 2020

February 2, 2021

Lavine, Elgo and Palmer, Js.^*

Syllabus

Convicted of the crimes of sexual assault in the fourth degree and of tampering with a witness, the defendant appealed to this court, claiming that the trial court improperly denied his motion to modify the terms and conditions of his probation because the conditions were overbroad and not reasonably related to his crimes, did not satisfy the purposes of probation and violated his free speech rights. Held:

1. This court declined to review the defendant's claim that the trial court abused its discretion by denying his motion to modify the probationary condition that he not have an authoritative position over females or access to their personal information because no cognizable dispute existed; the court found that the defendant did not demonstrate the deprivation he alleged, and the defendant did not challenge those findings on appeal.

2. This court declined to review the defendant's claim that the trial court abused its discretion by denying his motion to modify the probationary condition barring him from the use of social media of any kind because his objection to the condition was premature and speculative and it lacked a factual basis; the court found that the defendant had not submitted any specific requests to the Office of Adult Probation for an exception to use social media for business related purposes and that that office had expressed a willingness to consider exceptions to the condition if the defendant followed the procedures outlined in the conditions of his probation.

Procedural History

Substitute information charging the defendant with the crimes of sexual assault in the first degree, sexual assault in the fourth degree and tampering with a witness, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Vitale, J.; verdict and judgment of guilty of sexual assault in the fourth degree and tampering with a witness; thereafter, the court denied the defendant's motion to modify the conditions of his probation, and the defendant appealed to this court. Affirmed.

Edwin Njoku, self-represented, filed a brief as the appellant (defendant).

Samantha L. Oden, deputy assistant state's attorney, Gail P. Hardy, former state's attorney, and Vicki Melchiorre, supervisory assistant state's attorney, filed a brief for the appellee (state).

Opinion

LAVINE, J. The defendant, Edwin Njoku, appeals from the judgment of the trial court denying his motion to modify the conditions of his probation under General Statutes § 53a-30 (c). On appeal, the defendant claims that the trial court abused its discretion in refusing to modify his probationary conditions with respect to his job related activity and use of social media. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 2013, the defendant, formerly a licensed physician, was found guilty by a jury of fourth degree sexual assault of a patient in his medical office and of tampering with a witness. The court accepted the jury's verdict and imposed a total effective sentence of ten years of imprisonment, execution suspended after five years, with five years of probation consecutive to the ten year term of imprisonment. On December 8, 2017, the defendant was released from prison and began serving his period of probation.

At the time of sentencing, the trial court imposed the following special conditions of probation on the defendant: (1) have no contact by person, phone, mail, or any other means, including social media, directly or indirectly with the victim of his sexual assault and her family, (2) partake in sex offender evaluation as deemed necessary by his probation officer and sex offender treatment provider, (3) obtain approval of all employment from his probation officer and sex offender treatment provider, (4) do not engage in employment that places him in a position of authority over females or grants access to their personal information, (5) abide by sex offender conditions required by law, and (6) do not engage in the practice of medicine during the time his medical license is suspended. The defendant also signed a computer access agreement (agreement) as a condition of his probation. The agreement, in relevant part, required the defendant to refrain entirely from using social media "of any kind."¹ Thereafter, on August 23, 2018, the defendant's probation officer, Kellie DeCapua, imposed an additional condition that he have no contact with former female patients.

On September 4, 2018, the defendant filed a "Motion to Clarify and/or Modify Special Order of Probation,"² pursuant to § 53a-30 (c),³ challenging two of the court imposed conditions of probation, namely (1) the condition that he have no employment in which he has authority over females or have access to their personal information, and (2) the condition that he not access social media of any kind.⁴ The court heard arguments on the motion to modify over two days, November 6 and 19, 2018. The court addressed the defendant's claims individually on separate days.

On November 6, 2018, the defendant challengedDeCapua's construction of the condition that he not be in a position of authority over females or have access to their personal information. The defendant characterized DeCapua's construction of that condition as prohibiting him from (a) acting as a landlord, by barring him from entering into lease agreements with potential tenants, collecting rent from tenants, and performing any maintenance or cleaning, or mowing lawns, on his properties, and (b) engaging in any economic activity of his own, either as part owner or as an investor in a business, given the likelihood that he would be in a position of authority over females as well as males. In his motion, he challenged the propriety of the conditions imposed on him on the grounds that they lacked a nexus to the crimes of which he was convicted, detracted from the state's probation goal of rehabilitation, and were cruel and unusual in violation of the eighth amendment to the United States constitution. He also argued that DeCapua violated his due process rights by consulting the Office of the State's Attorney to clarify whether the business plan he had submitted to her conformed to his probation conditions and then prohibiting him from pursuing that plan without affording him a hearing.

The court rejected the defendant's claims, crediting DeCapua's testimony that she had not banned the defendant from all employment.⁵ The court found, rather, that DeCapua had permitted the defendant to proceed with his described business plan as long as he provided the Office of Adult Probation with the required paperwork. The court also found that the defendant had acknowledged that he was required to have a property manager to handle his affairs as a landlord in order that he not come in unpermitted contact with females. The court therefore denied the motion with regard to employment, finding that the defendant agreed that the challenged conditions were proper.

On November 19, 2018, the defendant challenged the condition of probation restricting him from using social media. He argued that that condition was unduly restrictive, and therefore unlawful, because there was no reasonable relationship between the crimes of which he had been convicted, which occurred in a medical office, and the broad prohibition against his use of social media. The defendant argued that a valid condition of probation requires a nexus between the condition and the crime for which it was imposed, because § 53a-30 (a) (17) requires that the condition be reasonably related to his rehabilitation. The defendant further argued that a blanket ban on the use of social media was unconstitutional under Packingham v. North Carolina, U.S. , 137 S. Ct. 1730, 1737, 198 L. Ed. 2d 273 (2017), in which the United States Supreme Court struck down, on first amendment grounds, a statute making it a felony for registered sex offenders to access a wide variety of social media websites.

The court rejected the defendant's argument, citing the wide discretion given to the Office of Adult Probation to impose conditions in the interest of protecting public safety and the fact that the defendant was still serving his sentence. The court further found that the social media sites to which the defendant wants access "are not currently in controversy" because he had either failed to make requests for access to DeCapua, or had failed to demonstrate that he had been prevented from their use. The court also found that, in any event, the conditions of the agreement the defendant signed for his sex offender treatment⁶ entirely prohibited the use of social media. In fact, the court found that the defendant had been using social media to contact his former patients while he was on probation. The court denied the defendant's motion to modify on the grounds that the defendant had not presented a controversy that the court could properly resolve at that time, and that, in any case, the defendant's sex offender treatment provider did not permit him to use social media and public safety interests supported the condition. This appeal followed.

The defendant claims on appeal that the trial court's denial of his motion to modify the conditions of his probation was improper, because the conditions were overbroad and lacked a "direct nexus" to the crimes of which he had been convicted, did not satisfy the purposes of probation, and violated his free speech rights. We do not agree.

The standard of review for the denial of a motion to modify probation is well established. "Probation is the product of statute. . . . Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing...