State v. Andaz ( 2018 )

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STATE OF CONNECTICUT v. DAVE ANDAZ
(AC 38888)
Keller, Bright and Pellegrino, Js.
Syllabus
The defendant, who had been on probation in connection with his conviction
of the crime of possession of a weapon or dangerous instrument in a
correctional institution, appealed to this court from the judgment of the
trial court finding him in violation of his probation. As a standard condi-
tion of his probation, the defendant was required and agreed not to
violate any state or federal criminal law. During his probation, the defen-
dant was arrested in connection with his assault of a college student,
and he was thereafter arrested a second time and charged with burglary
in the third degree, criminal trespass in the third degree and larceny in
the sixth degree after being found by the police in an abandoned building.
The defendant then was arrested pursuant to a warrant for violation of
his probation. As the basis for his violation of probation, the arrest
warrant application cited the second arrest as a violation of the general
condition of his probation that he not violate any state or federal criminal
law. Six days before the scheduled violation of probation hearing, the
state filed a long form information substituting the defendant’s first
arrest as the underlying basis for the violation of his probation, and the
defendant and his counsel were informed of this change on that same
day. The defendant’s counsel did not object to the change or seek a
continuance of the hearing. Following the hearing, the trial court found
by a preponderance of the evidence that the defendant, by assaulting
the victim, had violated a criminal law, thereby violating a general condi-
tion of his probation. The court revoked the defendant’s probation, and
the defendant appealed to this court. On appeal, he claimed, for the
first time, that his due process right to fair notice of the charges against
him was violated by the state’s filing of a substitute information changing
the underlying basis for his violation of probation six days prior to his
violation of probation hearing because the late notice caused him unfair
surprise and prejudice in preparing his defense. Held that the defendant’s
unpreserved due process claim failed under the third prong of the test
set forth in State v. Golding (213 Conn. 233), as the defendant received
adequate notice of the ground on which he ultimately was found to
have violated his probation: it was undisputed that the substitute infor-
mation was filed six days before the start of the defendant’s probation
hearing and the record revealed that the defendant’s counsel acknowl-
edged that he and the defendant had received the substitute information
that same day, that counsel voiced no objection and did not seek a
continuance at that time and that counsel had reviewed the substitute
information with the defendant prior to the hearing, and the defendant
provided no case law to support the proposition that six days did not
constitute fair notice; moreover, from the arrest warrant and the substi-
tute information, the defendant was aware that he was accused of having
violated the criminal laws of this state because of his recent arrests, as
the defendant was charged with having violated the general condition
of his probation that he would not violate any criminal law, the arrest
warrant application specified that condition as the basis of his violation
and the state did not alter the underlying condition that it alleged the
defendant had violated when it filed the substitute information.
Argued January 2—officially released April 17, 2018
Procedural History
Substitute information charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of New Haven and tried to the
court, O’Keefe, J.; judgment revoking the defendant’s
probation, from which the defendant appealed to this
court. Affirmed.
Peter Tsimbidaros, assigned counsel, with whom, on
the brief, were Christopher Duby, assigned counsel,
and Robert O’Brien, assigned counsel, for the appel-
lant (defendant).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, former
state’s attorney, and Sean McGuinness, assistant state’s
attorney, for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Dave Andaz, also
known as David Polek,1 appeals from the judgment of
the trial court finding him in violation of his probation
pursuant to General Statutes § 53a-32.2 On appeal, the
defendant claims that his due process right to fair notice
of the charges against him was violated by the state’s
filing of a substitute information changing the underly-
ing basis for his violation of probation six days prior
to his probation revocation hearing. We disagree and,
accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the issue on appeal. On April
29, 2014, the defendant was convicted of possession of
a weapon or dangerous instrument in a correctional
institution in violation of General Statutes § 53a-174a
and sentenced to six years incarceration, execution sus-
pended after thirteen months, followed by three years
of probation. The court imposed and the defendant
agreed to the standard conditions of probation, which
included, inter alia, that he not violate any state or
federal criminal law. The period of probation began
on February 27, 2015. Thereafter, on May 5, 2015, the
defendant was arrested following an incident on the
New Haven green when he and two other individuals
were seen assaulting a student from Yale University.
On July 29, 2015, the defendant was arrested when he
was found in an abandoned building at 301 George
Street in New Haven and charged with burglary in the
third degree in violation of General Statutes § 53a-103,
criminal trespass in the third degree in violation of
General Statutes § 53a-109, and larceny in the sixth
degree in violation of General Statutes § 53a-125b.
On July 30, 2015, the defendant was arrested on a
warrant for a violation of his probation pursuant to
§ 53a-32. As the basis for his violation, the warrant cited
the July 29, 2015 arrest as a violation of the general
condition of probation that the defendant not violate
any state or federal criminal law. An attorney was
appointed to represent the defendant. On December 2,
2015, six days before the date of the violation of proba-
tion hearing, the state filed a long form information
substituting the May 5, 2015 arrest, rather than the July
29, 2015 arrest cited in the original warrant, as the
underlying basis for the violation of his probation. The
defendant and his attorney were informed of this
change on December 2, 2015. The defendant’s attorney
did not object to the change or seek a continuance of the
hearing. Following the violation of probation hearing
on December 8, 2015, the court found by a preponder-
ance of the evidence that the defendant, by assaulting
the victim, violated a criminal law, thereby violating a
general condition of his probation. As a result of this
violation, the court revoked the defendant’s probation
and sentenced him to thirty months of incarceration.
This appeal followed. Additional facts will be set forth
as necessary.
The defendant’s sole claim on appeal is that he was
deprived of his due process right to fair notice of the
charges against him when the state filed a substitute
information six days prior to his probation revocation
hearing. The defendant argues that the late notice
caused him unfair surprise and prejudice in preparing
his defense.3 The defendant concedes that his due pro-
cess claim is unpreserved and seeks review pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015).
Pursuant to Golding, ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only
if all of the following conditions are met: (1) the record
is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Tucker, 179 Conn.
App. 270, 279, A.3d (2018). ‘‘In the absence of
any one of these conditions, the defendant’s claim will
fail. The appellate tribunal is free, therefore, to respond
to the defendant’s claim by focusing on whichever con-
dition is most relevant in the particular circumstances.’’
(Internal quotation marks omitted.) State v. Santana,
313 Conn. 461, 469–70, 97 A.3d 963 (2014). Upon review
of the record, we conclude that the defendant has failed
to satisfy the third prong of Golding.
We begin by setting forth the relevant legal principles.
It is well established that the defendant is entitled to
due process rights in a probation violation proceeding.
‘‘Probation revocation proceedings fall within the pro-
tections guaranteed by the due process clause of the
fourteenth amendment to the federal constitution. . . .
Probation itself is a conditional liberty and a privilege
that, once granted, is a constitutionally protected inter-
est. . . . The revocation proceeding must comport
with the basic requirements of due process because
termination of that privilege results in a loss of liberty.’’
(Citation omitted; internal quotation marks omitted.)
State v. Barnes, 116 Conn. App. 76, 79, 974 A.2d 815,
cert. denied, 293 Conn. 925, 980 A.2d 913 (2009).
‘‘Although the due process requirements in a probation
revocation hearing are less demanding than those in a
full criminal proceeding,4 they include the provision of
written notice of the claimed violations to the defen-
dant.’’ (Footnotes added and omitted.) State v. Repetti,
60 Conn. App. 614, 617, 760 A.2d 964, cert. denied, 255
Conn. 923, 763 A.2d 1043 (2000).
The defendant argues that the state did not provide
him with adequate notice of the basis of his violation
of probation when it filed a substitute information six
days prior to the violation of probation hearing. This
court has held, however, that ‘‘[i]t is beyond question
that in a criminal proceeding, the state may change the
factual basis supporting a criminal count prior to trial.
See Practice Book § 36-17.5 If substantive amendments
are permissible prior to trial in a criminal proceeding,
then surely our legislature did not intend to prohibit
them prior to a hearing in a probation revocation pro-
ceeding.’’ (Footnote in original.) State v. Outlaw, 60
Conn. App. 515, 526, 760 A.2d 140 (2000), aff’d, 256
Conn. 408, 772 A.2d 1122 (2001). The language of Prac-
tice Book § 36-17 requires only that the substitute infor-
mation be filed before the trial or hearing commences,
which this court interprets broadly. See State v.
Iovanna, 80 Conn. App. 220, 223, 834 A.2d 742 (2003)
(defendant received adequate notice of grounds on
which he was found to have violated probation where
state filed substitute information with additional charge
at beginning of probation hearing); State v. Repetti,
supra, 60 Conn. App. 617 (no due process violation in
probation hearing where state filed substitute informa-
tion before start of probation hearing and defendant
did not object to substituted charges); see generally
State v. Marsala, 44 Conn. App. 84, 89–90, 688 A.2d 336
(finding no abuse of discretion where court allowed
prosecutor to amend information on day that trial
began), cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).
The record reveals that on December 2, 2015, the
state filed a substitute information charging the defen-
dant with violation of probation on the basis of his May
5, 2015 arrest. On that date, the defendant’s counsel
acknowledged that he and the defendant had received
the substituted information. The defendant’s counsel
voiced no objection and did not seek a continuance at
that time. The defendant’s probation revocation hearing
was held on December 8, 2015, six days later. Prior to
the start of the hearing, the defendant’s counsel stated
that he had reviewed the substituted information with
the defendant. It is undisputed that the substitute infor-
mation was filed prior to the start of the defendant’s
probation hearing, and the defendant provides no case
law, nor do we find any such authority, to support the
proposition that six days does not constitute fair notice.
Furthermore, the condition of the defendant’s proba-
tion that he was charged with violating was that he
would not violate any criminal law, and the arrest war-
rant application, dated July 30, 2015, specified that con-
dition as the basis of the violation. The state did not
alter the underlying condition that it alleged the defen-
dant had violated, that he not violate any criminal law,
when it filed the substitute information on December
2, 2015. From the warrant and the substitute informa-
tion, the defendant was aware that he was accused of
violating the criminal laws of this state because of his
recent arrests. This court has stated that ‘‘[w]here crimi-
nal activity forms the basis for the revocation of proba-
tion, the law imputes to the probationer the knowledge
that further criminal transgressions will result in a con-
dition violation and the due process notice requirement
is similarly met.’’ (Internal quotation marks omitted.)
State v. Hooks, 80 Conn. App. 75, 80, 832 A.2d 690, cert.
denied, 267 Conn. 908, 840 A.2d 1171 (2003). At the
conclusion of the violation of probation hearing, the
court found that the state had satisfied its burden of
proving that the defendant violated this general condi-
tion: ‘‘I find . . . by a fair preponderance of the evi-
dence that [the defendant] engaged in criminal behavior
while he was on probation. So, he’s in violation of
his probation.’’
After a careful review of the record, we conclude that
the defendant received adequate notice of the ground
on which he ultimately was found to have violated his
probation. See State v. Iovanna, supra, 80 Conn. App.
223. Accordingly, the defendant’s claim fails Golding’s
third prong because he has failed to demonstrate that
a constitutional violation exists and deprived him of
due process during his probation revocation hearing.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the various informations and warrants occasionally refer to
the defendant by the last name ‘‘Polek,’’ his legal name is Andaz, and the
trial court granted his motion to correct the record to reflect that his legal
name is Andaz on September 29, 2015.
2
General Statutes § 53a-32 (a) provides in relevant part: ‘‘Whenever a
probation officer has probable cause to believe that a person has violated
a condition of such person’s probation, such probation officer may notify
any police officer that such person has, in such officer’s judgment, violated
the conditions of such person’s probation and such notice shall be sufficient
warrant for the police officer to arrest such person and return such person
to the custody of the court or to any suitable detention facility designated
by the court. . . .’’
3
See State v. Carter, 84 Conn. App. 263, 273, 853 A.2d 565 (‘‘[w]here the
defendant can demonstrate neither unfair surprise nor prejudice, he cannot
claim an infringement of his constitutional right to fair notice of the crimes
with which he is charged’’ [internal quotation marks omitted]), cert. denied,
271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct.
2529, 161 L. Ed. 2d 1120 (2005).
4
This court has recently discussed the due process requirements for a
probation hearing in State v. Tucker, supra, 179 Conn. App. 280, stating:
‘‘[T]he minimum due process requirements for revocation of [probation]
include written notice of the claimed [probation] violation, disclosure to
the [probationer] of the evidence against him, the opportunity to be heard
in person and to present witnesses and documentary evidence, the right to
confront and cross-examine adverse witnesses in most instances, a neutral
hearing body, and a written statement as to the evidence for and reasons
for [probation] violation. . . . Despite that panoply of requirements, a pro-
bation revocation hearing does not require all of the procedural components
associated with an adversarial criminal proceeding.’’ (Internal quotation
marks omitted.)
5
‘‘Practice Book § 36-17 provides: ‘‘ ‘If the trial has not commenced, the
prosecuting authority may amend the information, or add additional counts,
or file a substitute information. Upon motion of the defendant, the judicial
authority, in its discretion, may strike the amendment or added counts or
substitute information, if the trial or the cause would be unduly delayed or
the substantive rights of the defendant would be prejudiced.’ ’’ State v.
Outlaw, supra, 60 Conn. App. 526 n.14.