State v. Sanseverino

969 A.2d 710

291 Conn. 574

STATE of Connecticut v. Paolino SANSEVERINO.

No. 17786.

No. 17787.

Supreme Court of Connecticut.

Argued October 16, 2007.

Decided May 19, 2009.

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul Rotiroti, assistant state's attorney, for the appellant in Docket No. 17786, appellee in Docket No. 17787 (state).

Jon L. Schoenhorn, Hartford, for the appellant in Docket No. 17787, appellee in Docket No. 17786 (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

PALMER, J.

This case comes to us on the state's motion for reconsideration en banc. In State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008),¹ this court concluded, inter alia, that the defendant, Paolino Sanseverino, was entitled to reversal of his first degree kidnapping conviction in light of our decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).² In particular, we determined, in accordance with Salamon,³ that the defendant was entitled to a jury instruction that he could not be convicted of the crime of kidnapping unless the jury found beyond a reasonable doubt that the restraint involved in the commission of that crime was not merely incidental to and necessary for the commission of another crime against the victim, in this case, sexual assault in the first degree. State v. Sanseverino, supra, at 624-26, 949 A.2d 1156. We also held that the state was barred from retrying the defendant on the kidnapping charge because we concluded, on the basis of our review of the record, that no reasonable jury could have found that the restraint used by the defendant in the commission of the kidnapping was not incidental to and necessary for the commission of the sexual assault. See id., at 625, 949 A.2d 1156.

Following the release of our opinion in Sanseverino, the state filed a motion for reconsideration en banc, which we granted.⁴ In its motion,⁵ the state first contends that this court improperly barred the state from seeking to retry the defendant for kidnapping in the first degree by ordering that a judgment of acquittal be rendered on that charge. Second, the state contends that, if it elects not to retry the defendant for kidnapping, it nevertheless is entitled to a judgment of conviction of unlawful restraint in the second degree under General Statutes § 53a-96 as a lesser included offense of kidnapping in the first degree. As this court recently has acknowledged; see State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008); the state is correct that, in Sanseverino, we improperly precluded the state from seeking to retry the defendant on the kidnapping charge. We therefore reverse that portion of our judgment in Sanseverino ordering that a judgment of acquittal be rendered on that charge. We also agree with the state that, as an alternative to retrying the defendant on the first degree kidnapping charge, it is entitled to a judgment of conviction of the lesser included offense of unlawful restraint in the second degree.⁶

The facts that the jury reasonably could have found are set forth in this court's opinion in State v. Sanseverino, supra, 287 Conn. at 608, 949 A.2d 1156. "`In June or July, 1998, the defendant, the owner of Uncle's Bakery in Newington, hired C to work in the bakery.... One day, toward the end of her shift, while she was alone with the defendant, the defendant asked C to take a box into the back room. The defendant followed C into the back room, grabbed her by her shoulders and pushed her against a wall and a metal shelving unit. She could not move because the defendant had one arm and his upper body pressed against her. The defendant pulled her shirt out of her pants, put his hand under her shirt and touched her breasts. She tried to push him away and told him three or four times to stop, but he told her that "he could do whatever he wanted to [her] because he had friends in the Newington police department, and it would be [her] word against his. Nobody would believe [her]." He then unbuttoned her jeans, pulled them down and digitally penetrated her vagina. He unbuttoned his pants and pulled out his penis. He turned C around and held her down by the back of the neck, pinning her with her head between the shelving unit and the wall. He tried to insert his penis into her vagina, but because she kept moving around, he did not successfully penetrate her, although she did feel the pressure of him trying to insert himself.

"`At that point, the buzzer rang at the front door, indicating that a customer had entered the store. The defendant turned C around, put his hand over her mouth, pushed her against the wall and told her to stay there and to be quiet. When the defendant left to assist the customer, C ran out of the bakery and went home. She never returned to the bakery. At home, C went into the bathroom, took off her clothes and showered. She later burned her clothing. She testified that her initial intention was to call the police but that when she got home, her boyfriend had three other people with him, and she did not want them to know, so she did not tell anyone or call the police at that time. She did not tell anyone what had happened to her until "a couple of months later." C testified that after what happened, she was angry always, and if she was not working, she was sleeping. She said that she would not talk to anybody or let anybody touch her, and she would not let anybody be around her. Her boyfriend's mother, with whom C was residing, eventually asked her about her behavior and mood, and C "finally broke down and told her what had happened at the bakery."

"`On November 8, 1998, C contacted Peter Lavery, an officer with the Newington police department, to report that she had been sexually assaulted sometime in June or July, 1998, by the defendant at Uncle's Bakery. She gave a sworn statement of what had occurred. Later that same day, she contacted Lavery and said that she did not want to press charges against the defendant and did not want to go through any further investigation of the case because it would be too stressful for her to go to court and [to] go through the court proceedings. In August, 1999, however, after being informed that a second rape victim, G, had come forward, C agreed to reinstate her case against the defendant. C and G did not know each other.

"`In the fall of 1998, G became a regular customer at Uncle's Bakery. In the spring of 1999, she approached the defendant about working at the bakery and was hired to work from 5 a.m. to 7:30 a.m. In May, 1999, as G started her shift at 5 a.m., she went into the back room of the bakery to get her apron. The defendant followed her in and grabbed her. She told him to "get away and stop," to which the defendant replied, "[you] know you want it, so stop." The defendant grabbed G's arms, pushed her against the wall, pinned her arms over her head with his arm, and pressed his body against [her body] so she could not move. She twice yelled at him to stop, but he did not. She testified that she became afraid and that she froze. While still keeping her pinned [with one hand], he pulled her pants down, then pulled his pants down. He inserted his penis inside her vagina and then, prior to climaxing, pulled out and ejaculated on the floor. The defendant let G go, and she went into the bathroom, locked herself in and did not come out again until she heard another person enter the bakery. G then came out of the bathroom, waited until her shift was over and went home. She threw away her clothes. She did not talk to anybody about what had happened because, she testified, she felt ashamed, dirty, cheap and scared because the defendant had threatened her. She testified that he had told her [on numerous occasions] that "he was with the family, the mob, and that if [she] ever said anything ... he would take care of [her] and [her] family." G continued to work at the bakery for about one week because she was afraid of the defendant. After one week, she ... quit because she "could [not] stand to see [the defendant] anymore." At some point, G told her former husband and her sister what had happened. She was advised not to say or do anything "because it would cause a scandal" and because her sister and her sister's husband "were in the process of buying the business from the defendant." She testified that if she had said anything, "they might have lost the business." In July, 1999, however, G reported the sexual assault when she found out that the defendant was "smearing [her] name, saying that [she] was doing sexual favors for other men." This made her angry and determined that "he's not going to get away with this." ... The defendant subsequently was charged in connection with both incidents.'" Id., at 613-16, 949 A.2d 1156.

Our opinion in Sanseverino also sets forth the following additional undisputed facts and procedural history. "The state separately ... charged the defendant with kidnapping in the first degree with respect to C and G. Prior to trial, upon agreement of the state, the trial court dismissed the charge of kidnapping in the first degree as to C, which the defendant claimed had been brought beyond the statute of limitations. The trial court denied the defendant's motion to have the charges relating to C and G tried separately pursuant to Practice Book § 41-18. At the close of the state's case-in-chief, the defendant moved for a judgment of acquittal, which the trial court also denied. During the presentation of his case, the defendant claimed that he had dated both C and G for a period of time and that any sex with [them] was consensual. The jury subsequently returned a verdict of guilty on all four counts of the substitute information: sexual assault in the first degree and attempt to commit sexual assault in the first degree as to C, and kidnapping in the first degree and sexual assault in the...