State v. Peluso , 187 Conn. App. 498 ( 2019 )

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STATE OF CONNECTICUT v. BERNARD J. PELUSO
(AC 40998)
DiPentima, C. J., and Sheldon and Bear, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, sexual assault
in the fourth degree and risk of injury to a child in connection with
his alleged sexual abuse of the minor victim, the defendant appealed,
claiming, inter alia, that the state lacked good cause to amend the
information during the trial. The defendant was alleged to have sexually
assaulted the victim when the defendant lived in the same condominium
complex as the victim’s family. The long form information alleged that
the incidents occurred during either 2010 or 2011, which was when the
victim was in the fifth grade. During trial, however, the victim testified
that the incidents had taken place when she was in the third grade,
which would have been either in 2008 or 2009. Thereafter, the defendant
filed a motion for a judgment of acquittal on the ground that the alleged
offenses could not have occurred during the time frame provided in the
state’s information, as he had moved out of the condominium complex
in 2010. Subsequently, the state filed a motion to amend its information
to conform to the victim’s testimony to allege that the offenses occurred
in either 2008 or 2009. The court denied the defendant’s motion for a
judgment of acquittal and granted the state’s motion to amend. On the
defendant’s appeal, held:
1. The trial court did not abuse its discretion in permitting the state to
amend its information to conform to the victim’s testimony as to when
the offenses alleged in the information had occurred; this court, having
recognized that prosecuting child sexual assault cases presents a unique
set of challenges, has permitted amendments during trial where testi-
mony suggested that the offenses occurred outside the time frame
alleged in the operative information, and in light of the victim’s age and
the length of time between when the offenses allegedly occurred and
when the prosecution of this matter took place, and the rationale that
has guided this court’s precedent with respect to this issue, the state
had good cause to amend its information during trial, as the victim’s
statements to investigators prior to the commencement of trial indicated
a less specific time frame than the one she ultimately identified in her
testimony, and there was no indication that had the state been more
diligent in its pretrial investigation, it could have alleged a more precise
time frame before trial.
2. The defendant’s claim that the court erred in concluding that his substan-
tive rights were not prejudiced by the state’s amendment to its informa-
tion was unavailing: although the defendant contended that his entire
defense was predicated on claiming that he did not live in the condomin-
ium complex at the time alleged in the information, given the nature of
the allegations and the information available to him, the state’s amend-
ment did not deprive him of adequate notice, nor was he prejudiced by
the amendment, as he clearly was aware of the time frame that was at
issue regardless of the dates that were provided in the information prior
to trial; moreover, the trial court did not abuse its discretion in deciding
that a one week continuance was sufficient time for the defendant to
augment his defense in response to the amended information, as the
court, without addressing whether the defendant had been prejudiced
by the amendment to the information, indicated that it was willing to
allow the defendant as much time as he needed to reconfigure his
defense, the defendant did not provide any substantive basis for his
request for a five week continuance apart from a general need to investi-
gate and ascertain his whereabouts during the new time frame, and
following the court’s decision to grant the defendant only a one week
continuance, the defendant informed the court he was willing to accept
a three day continuance.
Argued October 23, 2018—officially released January 29, 2019
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
first degree and sexual assault in the fourth degree, and
with three counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
Waterbury and tried to the jury before K. Murphy, J.;
thereafter, the court granted the state’s motion to
amend its information and denied the defendant’s
motion for judgment of acquittal; verdict and judgment
of guilty, from which the defendant appealed. Affirmed.
James P. Sexton, assigned counsel, with whom were
Megan L. Wade, assigned counsel, and, on the brief,
Matthew C. Eagan, assigned counsel, and Marina L.
Green, assigned counsel, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Amy Sendensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Bernard J. Peluso,
appeals from the judgment of conviction, rendered after
a jury trial, on two counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),
two counts of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (A), and
three counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). On appeal, the defen-
dant claims that the trial court improperly granted the
state’s motion to amend its information.1 Specifically,
he argues that the state lacked good cause to amend
its information during trial and, alternatively, that the
court improperly concluded that his substantive rights
would not be prejudiced by the amendment. We dis-
agree and, thus, affirm the judgment of conviction.
The jury reasonably could have found the following
facts in support of its verdict. In 2008 and 2009, when
the victim, S,2 was in the third grade, she lived in a
condominium complex with her mother, her older sis-
ter, L, and her older brother. During this time, the defen-
dant lived in the same condominium complex and,
approximately three to five times a week, S and L would
spend time with him after school. The defendant was
‘‘like an uncle’’ to the girls, and he called them ‘‘his
nieces.’’ Although the defendant had a girlfriend who
lived with him, she typically was not home when the
girls came over. At some point, while S was still in the
third grade, the defendant began to make suggestive
comments to her. Soon thereafter, the defendant began
sexually assaulting S.
The state charged the defendant in connection with
three separate incidents.3 The first incident of sexual
assault occurred when the defendant and S were alone
watching a movie on the couch in the defendant’s living
room. The defendant put his hands down the S’s pants,
touched her vagina and digitally penetrated her. After
he touched her, the defendant kissed her neck and
made her place her hands on his jeans, over his penis.
Following the incident, and before she went home, the
defendant told S not to tell his girlfriend.
The second incident occurred when S came over
to the defendant’s house while he was shaving. The
defendant told S to come into the bathroom. When S
came into the bathroom, she noticed that the defendant
was wearing only a towel, which was wrapped around
his waist. While S was in the bathroom with him, the
defendant went over to the toilet and urinated. While
he was doing so, he told S to touch his penis, which
she did. Later that same day, S went and used the
defendant’s bathroom. While she was in the bathroom,
the defendant opened the door and stared at her.
Finally, the third incident occurred when, on another
occasion, the defendant took S upstairs to his computer
room. He made S lie on the floor while he performed
cunnilingus on her. As with the prior incident on the
couch, the defendant told S not to tell his girlfriend.
At some point after S had finished third grade, the
defendant and his girlfriend moved out of the condomin-
ium complex. Occasionally, S would still see the defen-
dant, most often when her grandmother would take her
out to eat at the restaurant that he owned. As she got
older, S saw the defendant less and less frequently. The
last time she encountered him was when she was in
the ninth grade. S was walking home from her bus stop
with a friend, when the defendant pulled up alongside
the two girls in his pickup truck. The defendant talked
to S briefly before writing down his phone number and
giving it to her. He told S to call him sometime.
In January, 2015, S told a friend about the sexual
abuse she had experienced as a child. The next day, the
friend notified a guidance counselor, and, in accordance
with her obligations as a mandated reporter,4 the guid-
ance counselor informed the police. Later that day,
detectives interviewed S about the allegations. S pro-
vided the police with a written statement, in which she
detailed the incidents that had occurred while she was
in elementary school. In her statement, S indicated that
the incidents had occurred when she was in the fifth
grade.
Soon thereafter, the defendant was arrested and
charged. The long form information, dated April 19,
2016, alleged that the incidents had occurred during
either 2010 or 2011. During trial, however, S testified
that the incidents had taken place when she was in the
third grade, which would have been in either 2008 or
2009. The following day, the defendant filed a motion
for a judgment of acquittal, and the state filed a motion
to amend its information to allege that the offenses had
occurred in either 2008 or 2009. The court granted the
state’s motion to amend and denied the defendant’s
motion for judgment of acquittal. The jury subsequently
found the defendant guilty on all seven counts. The
court rendered judgment accordingly and sentenced
the defendant to a total effective sentence of twenty-
two years of incarceration, execution suspended after
twelve years, followed by fifteen years of probation.
This appeal followed.
With respect to the defendant’s only operative claim
on appeal, we begin by noting that a trial court’s deci-
sion to permit the state to amend its information is
reviewed for an abuse of discretion. State v. Grant, 83
Conn. App. 90, 96–97, 848 A.2d 549, cert. denied, 270
Conn. 913, 853 A.2d 529 (2004). We acknowledge, how-
ever, that although ‘‘a prosecutor has broad authority
to amend an information under Practice Book § [36-
17]’’ prior to the commencement of the trial, ‘‘[o]nce
the trial has started . . . the prosecutor is constrained
by the provisions of Practice Book § [36-18]. . . . Prac-
tice Book § 36-18 provides in relevant part: After com-
mencement of the trial for good cause shown, the
judicial authority may permit the prosecuting authority
to amend the information at any time before a verdict
or finding if no additional or different offense is charged
and no substantive rights of the defendant would be
prejudiced. . . . It is well settled that the state bears
the burden of demonstrating that it has complied with
the requirements of § 36-18 in seeking permission to
amend the information.’’ (Citations omitted; internal
quotation marks omitted.) State v. Ayala, 324 Conn.
571, 585, 153 A.3d 588 (2017).
The following additional facts and procedural history
are relevant to the defendant’s claim. The day after S
testified, the defendant filed a motion for a judgment
of acquittal on the grounds that the alleged offenses
could not have occurred during the time frame provided
in the state’s information. In response to the defendant’s
motion, the state filed a motion to amend its information
to conform to the victim’s testimony. The defendant
objected to the motion to amend, arguing that the state
lacked good cause to do so because S had consulted
with prosecutors at least two weeks prior to trial and,
during this meeting, it was determined that the incidents
could not have occurred in 2010 or 2011.5 Thus, it was
the defendant’s position that the state had no justifiable
reason for failing to amend its information before the
commencement of trial. Alternatively, the defendant
argued that he would be prejudiced by the late amend-
ment insofar as his defense was predicated largely on
the fact that he did not live in the condominium complex
when the incidents were alleged to have occurred.
The state claimed that, although prosecutors had spo-
ken with S prior to trial about the issue with the time
frame provided in her police statement, S maintained
during this meeting that the incidents had occurred
when she was in the fifth grade or earlier. The state
averred that it did not know precisely when the inci-
dents had taken place until S testified at trial. Moreover,
the state argued that the defendant’s claim of prejudice
was without merit because he knew that the charged
offenses were alleged to have occurred when he was
living in the condominium complex, which would have
been before 2010.6
Mindful that it is often difficult for prosecutors to
delineate specific time frames in cases involving allega-
tions of sexual assault against minor victims, the court
granted the state’s motion to amend its information. In
so doing, the court offered to grant the defendant a
continuance in order to prepare his defense in light of
the newly amended information. After a brief recess,
the following colloquy occurred:
‘‘[Defense Counsel]: We’re going to need a continu-
ance, Your Honor.
‘‘The Court: Okay, and how long do you need?
‘‘[Defense Counsel]: We’re going to need at least
five weeks.
‘‘The Court: Why?
‘‘[Defense Counsel]: He’s got a number of employers.
We have to hire an investigator.
‘‘The Court: To do what? No. No. No. Be specific
here. . . . We’re not taking a five week continuance
unless—if you need a five week continuance, you’ll get
it. You need to tell me what it is in your defense not
what his employer needs.
***
‘‘[Defense Counsel]: We need to track his where-
abouts now from the time this girl was eight years old
’til the time—
‘‘The Court: You don’t need to track his whereabouts.
***
‘‘So, what is it you need to do during this continuance
period? Be as specific as possible.
‘‘[Defense Counsel]: Your Honor, we need to inves-
tigate.
‘‘The Court: Don’t just say investigate. You need to
be more specific so I can evaluate [the] timeframe that
you need. You said you need to do some records
checking.
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: Okay. I will give you a week continuance
and if that’s your request, you can subpoena in any
witness that you feel you need to examine as well as
anyone that’s already been called you could examine
again.
‘‘[Defense Counsel]: Thank you.’’
On appeal, the defendant claims that the court abused
its discretion in concluding (1) that the state had good
cause to seek an amendment to its information during
trial and (2) that the defendant, having been granted
a one week continuance, was not prejudiced by the
amendment. We do not agree.
Pursuant to Practice Book § 36-18, ‘‘[g]ood cause
. . . assumes some circumstance that the state could
not have reasonably anticipated or safeguarded against
before trial commenced.’’ State v. Ayala, supra, 324
Conn. 585–86. ‘‘To meet its burden of showing good
cause to amend an information pursuant to the rules
of practice, the state must provide more than a bare
assertion that it is merely conforming the charge to the
evidence.’’ State v. Jordan, 132 Conn. App. 817, 825, 33
A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119
(2012). This court has recognized, however, that prose-
cuting child sexual assault cases presents a unique set of
challenges, and, thus, we have permitted amendments
during trial where testimony suggests that the offenses
occurred outside the time frame alleged in the operative
information. See, e.g., State v. Victor C., 145 Conn. App.
54, 66, 75 A.3d 48 (good cause for amendment where
victim could not remember specific date incidents
occurred and other witness’ testimony was inconsistent
with time frame in the original information), cert.
denied, 310 Conn. 933, 78 A.3d 859 (2013); State v.
Grant, 83 Conn. App. 90, 95–98, 848 A.2d 549 (affirming
trial court’s decision that in light of victim’s age there
was good cause to amend information to conform to
victim’s testimony), cert. denied, 270 Conn. 913, 853
A.2d 529 (2004).
Cognizant of the rationale that has guided our prece-
dent with respect to this issue, and in light of the victim’s
age and the length of time between when the offenses
allegedly occurred and when the prosecution of this
matter took place, we conclude that the state had good
cause to amend its information during trial. As in State
v. Grant, supra, 83 Conn. App. 93–94, S’s statements
to investigators prior to the commencement of trial
indicated a less specific time frame than the one she
ultimately identified in her testimony. Further, there is
no indication that had the state been more diligent in
its pretrial investigation it could have alleged a more
precise time frame before trial. See State v. Wilson F.,
77 Conn. App. 405, 413, 823 A.2d 406, cert. denied, 265
Conn. 905, 831 A.2d 254 (2003). Simply stated, the court
did not abuse its discretion in permitting the state to
amend its information to conform to the victim’s testi-
mony as to when the offenses alleged in the information
had occurred.
The defendant also claims that the court erred in
concluding that his substantive rights were not preju-
diced by the state’s amendment. ‘‘In the prejudice analy-
sis, the decisive question is whether the defendant was
informed of the charges with sufficient precision to be
able to prepare an adequate defense. . . . If the defen-
dant has not asserted an alibi defense and time is not
an element of the crime, then there is no prejudice
when the state amends the information to amplify or
to correct the time of the commission of the offense.
. . . Ultimately, if the amendment has no effect on the
defendant’s asserted defense, there is no prejudice.’’
(Citations omitted; internal quotation marks omitted.)
State v. Enrique F., 146 Conn. App. 820, 826, 79 A.3d 140
(2013), cert. denied, 311 Conn. 903, 83 A.3d 350 (2014).
Here, the defendant did not assert an alibi defense
and, although he contends that his entire defense was
predicated on claiming he did not live in the condomin-
ium complex at the time alleged in the information, we
conclude that on the basis of the nature of the allega-
tions and the information available to him, the state’s
amendment did not deprive the defendant of adequate
notice. As the state argued in its brief, the victim’s
statement to the police indicated that the offenses had
occurred while she was spending time with the defen-
dant when he was living in the condominium complex.
Further, the defendant acknowledged prior to trial that
some aspects of the charged offenses, and the
uncharged prior misconduct, had in fact occurred, but
disputed the allegations of inappropriate behavior
asserted therein.7 In this regard, we cannot conclude
that the defendant was prejudiced by the amendment,
given that he clearly was aware of the time frame that
was at issue, regardless of the dates that were provided
in the information prior to trial.8 See State v. Victor C.,
supra, 145 Conn. App. 67 (forensic interview report
provided to defendant before trial indicated time frame
at issue).
In conjunction with this claim, the defendant argues
that the court agreed to grant him with a continuance
as a means of mitigating the prejudice created by the
state’s amendment to the information, and that the
court erred insofar as it determined that a one week
continuance was sufficient.9 We disagree. The court,
without addressing whether the defendant had been
prejudiced by the amendment to the information, indi-
cated that it was willing to allow the defendant as much
time as he needed to reconfigure his defense. When
asked to articulate the reasoning behind his request for
a five week continuance, however, the defendant could
not provide any substantive basis apart from a general
need to ‘‘investigate’’ and ascertain his whereabouts
during the new time frame. Further, following the
court’s decision to grant the defendant only a one week
continuance, the defendant informed the court that he
was willing to accept a three day continuance instead.
Accordingly, to the extent that there is any support in
the record for the assertion that the court offered a
continuance as a means of addressing the prejudice
prong of Practice Book § 36-18, we conclude that the
trial court did not abuse its discretion in deciding that
a one week continuance was sufficient time for the
defendant to augment his defense in response to the
amended information.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims on appeal that his sentence is illegal insofar
as the court imposed fifteen years of probation for his conviction of multiple
counts of sexual assault in the first degree in violation of § 53a-70 (a) (2).
He argues, and the state agrees, that a conviction under § 53a-70 (a) (2) is
a class A felony and, pursuant to General Statutes § 53a-29 (a) and our
Supreme Court’s holding in State v. Victor O., 301 Conn. 163, 193, 20 A.3d
669, cert. denied, 565 U.S. 1039, 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011), the
court may impose only a period of special parole, not probation, for any
suspended portion of a sentence imposed for a conviction of a class A
felony. At oral argument, the state agreed that this portion of the defendant’s
sentence was illegal and reported that it had been corrected during the
pendency of this appeal. The defendant agreed that this resolution was
consistent with the relief he had requested. Accordingly, the issue is moot
and we need not address it in this decision.
2
In accordance with our policy of protecting the privacy interests of the
victims of the crimes of sexual assault and risk of injury to a child, we
decline to identify the victim or others through whom the identity of the
victim may be ascertained. See General Statutes § 54-86e.
3
S recalled two other instances that were not part of the charged offenses.
The first incident occurred when S was in the defendant’s computer room
and found a pornographic magazine in a desk drawer. The defendant came
into the room and made her look at the magazine with him. While they were
looking at the magazine, the defendant described the sexual acts that were
depicted. The second incident took place when S was in the kitchen with
the defendant; he picked her up, put her on a table and kissed her neck
several times. After this evidence was introduced, the court gave a limiting
instruction to the jury that these two instances of prior misconduct were
not alone sufficient to convict the defendant of the offenses charged in
the information.
4
See General Statutes § 17a-101b.
5
On cross-examination, S testified that when she met with prosecutors
prior to trial, they informed her that the defendant did not live in the
condominium complex when she was in fifth grade.
6
Specifically, the state noted that in her police statement and testimony
at trial, S provided details that clearly indicated the offenses occurred when
the defendant was living in the condominium complex. ‘‘She talks about his
couches, his pornography magazine, his desks, his bed when he clearly is
living there. . . . She talked about how they cooked, how they watched
TV. So this is not an undue surprise to the defendant.’’
7
For example, the state introduced into evidence a telephone call from
prison between the defendant and his girlfriend. During the call, the defen-
dant and his girlfriend discussed an incident that occurred when S came
over while he was in the bathroom.
‘‘[The Defendant’s Girlfriend]: Do you remember talking to me one time
that they came in and caught you in the shower.
‘‘[The Defendant]: Yup.
‘‘[The Defendant’s Girlfriend]: You came out with a towel on and that
kind of got twisted out of shape.
‘‘[The Defendant]: Yeah. I know—’’
The defendant also testified that he recalled an incident in which he found
S and L looking at a Playboy magazine that he owned. He testified that he
admonished the girls for looking at it.
8
Additionally, when the defendant testified at trial, he admitted that he
knew that S was alleging he sexually assaulted her when he was living in
the condominium complex.
9
The defendant also argues that the court improperly placed the burden
on him to justify the need for a five week continuance. The defendant
contends that in cases where the state seeks to amend the information during
trial, the defendant should be entitled to a continuance of a ‘‘presumptively
reasonable’’ length and ‘‘the state should retain the burden . . . for rebutting
that presumptive period if it seeks a shorter continuance.’’ We decline to
adopt this approach. In our view, it would be an unworkable constraint
on the inherent discretion of the trial court to establish a ‘‘presumptively
reasonable’’ continuance period that would not account for the unique fac-
tual and procedural circumstances that may arise in a given case. Rather,
it is the proponent’s burden to prove the need for and the length of the
requested continuance, and the court’s decision is subject to an abuse of
discretion standard of review by this court. See, e.g., Kennedy v. Kennedy,
83 Conn. App. 106, 109–110, 847 A.2d 1104 (‘‘A motion for continuance is
addressed to the discretion of the trial court, and its ruling will not be
overturned absent a showing of a clear abuse of discretion. . . . The burden
of proof is upon the party claiming an abuse of discretion. . . . Every
reasonable presumption in favor of the proper exercise of the trial court’s
discretion will be made.’’ [Internal quotation marks omitted.]), cert. denied,
270 Conn. 915, 853 A.2 530 (2004); see also West Haven Lumber Co. v.
Sentry Construction Corp., 117 Conn. App. 465, 472, 979 A.2d 591 (defendant
did not meet burden of proof in showing that court’s denial of motion for
a continuance was unreasonable or arbitrary decision), cert. denied, 294
Conn. 919, 984 A.2d 70 (2009); O’Connell v. O’Connell, 101 Conn. App. 516,
525–27, 922 A.2d 293 (2007).