State v. Herman K. ( 2022 )

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STATE OF CONNECTICUT v. HERMAN K.*
(AC 44317)
Bright, C. J., and Elgo and Flynn, Js.
Syllabus
Convicted, following a jury trial, of the crimes of assault in the first degree
causing serious physical injury and carrying a dangerous weapon in
connection with a stabbing incident, the defendant appealed to this
court, claiming that the trial court judge, because of the appearance of
partiality, was required to recuse himself at the defendant’s sentencing
hearing pursuant to the applicable rule of practice (§ 1-22) and the
applicable rule (rule 2.11) of the Code of Judicial Conduct. Prior to
trial, the defendant rejected a judge’s plea offer of twelve years of
incarceration, execution suspended after five years, and a period of
probation. A separate judge thereafter presided over the defendant’s
trial, at which the jury returned a guilty verdict. When the defendant
appeared for his sentencing, the judge brought to the attention of both
the prosecution and the defense that he would strike a reference in the
presentence investigation report to the rejected plea offer previously
made to the defendant. The defendant moved for a mistrial and a new
trial, which the court denied and interpreted as a motion to recuse the
judicial authority. The court denied the defendant’s motion for recusal,
reasoning, inter alia, that it had no participation in any pretrial plea
offers and, therefore, there was no violation of the rule set forth in State
v. Niblack (220 Conn. 270), which held that a judge who participates in
pretrial plea negotiations is disqualified from further proceedings if the
offer is not accepted. The judge sentenced the defendant to twenty
years of incarceration, suspended after twelve years, and three years
of probation. On the defendant’s appeal, held that the trial court did
not abuse its discretion in denying the defendant’s motion for recusal:
the defendant, as the moving party, failed to meet his burden in demon-
strating that recusal was warranted, as there was nothing in the record
to establish that a reasonable person would question the judge’s impar-
tiality, the judge did not participate nor have any involvement in plea
negotiations or plea offers in the defendant’s case and was not responsi-
ble for the improper reference to the plea offer in the presentence
investigation report and, once he learned of such improper reference,
he alerted both defense and the prosecutor, struck the reference thereto,
and stated on the record that it would have no effect on the imposed
sentence and that he had made no effort to confirm whether the alleged
plea offer had been made; moreover, after attending the lengthy trial, the
sentencing judge properly considered facts from the evidence relating
to the seriousness of the crime and the resulting near-death injuries to
the victim to determine the defendant’s length of sentence and, although
the sentencing judge considered other factors such as the defendant’s
remorse, his criminal history, and his age, the judge ultimately concluded
that a lenient sentence was not warranted for his crimes; furthermore,
the defendant’s claim that the reference to the plea offer in the presen-
tence investigation report created a floor that the judge might have felt
an obligation to exceed was unavailing as courts are obligated to set aside
irrelevant matter in performing their duties and courts are presumed
to consider only properly admitted evidence when rendering a decision
and, therefore, such a presumption applied equally to an improper men-
tion of a rejected plea offer in a presentence investigation report pro-
vided to the judge.
Argued January 31—officially released May 24, 2022
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree and carrying a
dangerous weapon, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before Vitale, J.; verdict of guilty; thereafter, the court,
Vitale, J., denied the defendant’s motion to disqualify
the judicial authority; subsequently, the court, Vitale,
J., rendered judgment in accordance with the verdict,
from which the defendant appealed to this court.
Affirmed.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
Melissa E. Patterson, senior assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
state’s attorney, and Seth R. Garbarsky, senior assistant
state’s attorney, for the appellee (state).
Opinion
FLYNN, J. Before this court is the defendant’s appeal
from the judgment of conviction, rendered following a
jury trial, of assault in the first degree in violation of
General Statutes § 53a-59 (a) (1) and carrying a danger-
ous weapon in violation of General Statutes § 53-206
(a). On appeal, the defendant claims that the trial court,
Vitale, J.,1 improperly denied the defendant’s motion
for disqualification at his sentencing hearing based
upon what he contends was the appearance of partial-
ity.2 We disagree and affirm the judgment of the trial
court.
We conclude that the court did not abuse its discre-
tion in denying the defendant’s motion for recusal. The
court denied the defendant’s motion for a mistrial, rul-
ing that it was untimely in light of the rules of practice.
The court also ruled that his retrial was unwarranted
because of a probation officer’s presentence report’s
mention of a rejected plea offer because it would have
no bearing or impact on the sentence imposed. Judge
Vitale then treated the motion as a motion to recuse
and denied that relief.
The following facts reasonably could have been found
by the jury. In May, 2018, the defendant had a fight with
another man at a twenty-four hour convenience store
in New Haven. The victim in this case, who is the defen-
dant’s nephew, was present at the time, but did not
intervene on the defendant’s behalf in that fight. There-
after, on the night of June 16, 2018, the victim was
hanging around the convenience store after 2 a.m. A
red truck drove by and later returned and parked in
the convenience store lot. The defendant exited the
truck and, without warning, stabbed the victim in the
back. When the victim abruptly turned around to con-
front his attacker, whom he quickly realized was his
uncle, the victim was stabbed in the arm by him. The
victim, who was bleeding profusely, ran 1360 feet and
collapsed on the street. He was taken to a hospital
by ambulance where he was treated by surgeons for
injuries to his lung, diaphragm, spleen, and large intes-
tine, as well as for a fractured rib, blood loss, and
pooling of blood in his lung. The victim sustained life-
threatening injuries.
The defendant was arrested and charged with assault
in the first degree causing serious physical injury in
violation of § 53a-59 (a) (1) and carrying a dangerous
weapon in violation of § 53-206 (a). Subsequent to his
arrest and prior to trial, a Superior Court pretrial pro-
ceeding was held before Judge Patrick Clifford at which
the defendant rejected a plea offer of twelve years of
incarceration, execution suspended after five years, and
a period of probation.3 In November, 2019, the defen-
dant went to trial before a jury. On November 15, 2019,
the jury returned verdicts of guilty on both counts. The
court then deferred the imposition of sentence pending
the filing of the required presentence investigation
report by the Office of Adult Probation.
The following procedural history occurred postver-
dict. On January 30, 2020, the presentence investigation
report had been completed and the defendant appeared
in court for sentencing. At that time, Judge Vitale noted
that he would strike from that report a reference to the
plea offer made to the defendant by Judge Clifford.
Judge Vitale termed the report’s single reference to a
rejected pretrial plea offer ‘‘inappropriate’’ and stated
it would have ‘‘absolutely no impact or bearing on the
. . . sentence to be imposed . . . .’’ The judge also
indicated on the record that he had no involvement
in any plea negotiations and lacked knowledge about
whether any occurred. Defense counsel then stated that
she would file a motion for mistrial and a new trial.
That motion was denied by the court on March 10, 2020.
The court then interpreted the motion for mistrial and
a new trial as a motion for recusal and denied that
motion to recuse.
The court, in denying the motion, stated that the
reference to a pretrial plea offer before another judge
should not have been included in the probation officer’s
presentence investigation report. It noted that the refer-
ence did not result from any impropriety on the part
of the court or either counsel. The court noted that it
had ordered the improper reference struck and redacted
from the report. The court also stated that it had no
participation in any pretrial plea offers, so that there
was no violation of the rule set forth in State v. Niblack,
220 Conn. 270, 280, 596 A.2d 407 (1991). In Niblack, our
Supreme Court held that a judge who participates in
pretrial plea negotiations is disqualified from further
proceedings if the offer is not accepted. Id.At sentencing, Judge Vitale heard from the prosecu-
tor, the defendant’s trial counsel, the defendant’s daugh-
ter and sister, and the defendant himself and evaluated
the presentence investigation report except for the por-
tion he ordered struck. Judge Vitale recounted that he
had presided over several days of trial and heard the
testimony of numerous witnesses who described the
stabbing by the defendant of his nephew in his back
and arm, the damage to various parts of the victim’s
body, and the medical attention and sequela with which
the victim now lives as a result of the vicious assault
to which the defendant subjected him.
The court then proceeded to sentence the defendant.
The court first reviewed the details of the defendant
plunging a large knife into the victim’s back without
warning and then slashing the victim’s arm as the victim
attempted to defend himself. The court then described
the victim running for his life for approximately 1300
feet, bleeding profusely in a bloody trail, which was
later discovered by the police. After being transported
to the hospital, the victim underwent several hours of
surgery to deal with damage to his lung, diaphragm, large
intestine, and a rib fracture, which caused the victim
to be hospitalized for a significant period of time. The
court found that the crime showed ‘‘a cold and cunning
premeditation,’’ which resulted in long-lasting injuries
from which the victim nearly died. The court then
reviewed the victim’s attitude, who was seeking signifi-
cant punishment, as reported by the victim’s advocate.
The court also reviewed the defendant’s background,
including his physical and mental health history, sparse
work record, and his record of eleven prior convictions,
ten of which were misdemeanors, and three prior viola-
tions of probation. The court also considered common
goals of sentencing, including rehabilitation, punish-
ment, deterrence, and protection of the public. Judge
Vitale then sentenced the defendant to twenty years of
incarceration, the execution of which was to be sus-
pended after service of twelve years, followed by three
years of probation on the charge of assault in the first
degree. On the charge of carrying a dangerous weapon,
the defendant was sentenced to one year of incarcera-
tion to be served concurrently with the sentence of
assault. The defendant’s total effective sentence was
twenty years of incarceration, suspended after twelve
years, five years of which was a minimum mandatory
term, and three years of probation.
On appeal, the defendant claims that when the court
learned, from reading the presentence investigation
report, of a prior plea offer of twelve years of incarcera-
tion suspended after eight years that the state had made
to the defendant, it became obligated to recuse itself,
not because of actual bias, but because there was an
appearance of partiality. In order to preserve the integ-
rity of the judicial sentencing process, he claims that
a new sentence before a different judge is required.4
The defendant further argues that ‘‘[a] reasonable
person might believe [that] the court felt an obligation
to sentence [the] defendant to something higher than
what was offered given the appraisal of the case by a
fellow judge’’ and that ‘‘a reasonable person could believe
this was simply something [the court] could not easily
ignore.’’ The defendant also argues that the disclosure
of the terms of a pretrial plea offer resulting from a
pretrial hearing before Judge Clifford created an ‘‘anchor-
ing effect.’’ The defendant defines the anchoring effect,
to wit, as ‘‘a cognitive bias that describes the human
tendency to adjust judgments or assessments higher or
lower based on previously disclosed external informa-
tion—the ‘anchor.’ ’’ According to the defendant, if the
court had not been exposed to the reference to a plea
offer made by another judge prior to trial, the court
would have been more likely to have imposed a less
lengthy sentence.
The state argues that the court properly declined to
recuse itself. It notes that the court (1) brought the
probation officer’s mistaken reference to a rejected plea
offer to the parties’ attention and ordered it struck
from the presentence investigation report, (2) had no
involvement in any plea negotiations, nor any conversa-
tions with the pretrial judge who supervises pretrial
offers, nor had reviewed any other judge’s advice, nor
had the court discussed any pretrial offers with either
counsel, and (3) indicated it had no personal stake in
the matter and had no resentment toward the defen-
dant, and that he would not consider the reference he
had ordered struck. The state also argues that the court
appropriately focused on proper factors when it imposed
sentence on the defendant.
Both the state and the defendant contend that appel-
late review of the denial of a motion for disqualification
of a judge is governed by an abuse of discretion stan-
dard. See State v. Milner, 325 Conn. 1, 12, 155 A.3d 730(2017); State v. Canales, 281 Conn. 572, 593, 916 A.2d
767 (2007). The state further points out that State v.
Lane, 206 Conn. App. 1, 8, 258 A.3d 1283, cert. denied,
338 Conn. 913, 259 A.3d 654 (2021), requires a reviewing
court utilizing the abuse of discretion standard to
‘‘indulge every reasonable presumption in favor of the
correctness of the court’s determination.’’ (Internal quo-
tation marks omitted.)
For reasons that follow, we first observe that we
disagree with the defendant’s claim that the ‘‘concerns’’
expressed in State v. D’Antonio, 274 Conn. 658, 681–83,
698, 877 A.2d 696, 712 (2005), are relevant to Judge
Vitale’s role in this case.5 D’Antonio is neither factually
similar to the present case nor are its requirements of
the extraordinary level of plain error appellate review
necessary or appropriate.
Unlike the present case, the ‘‘concerns’’ expressed in
D’Antonio were related to whether there was ‘‘judicial
vindictiveness’’ present on the part of a trial judge who
had participated in unsuccessful plea negotiations and
then, without objection, presided over the trial of the
same defendant’s charges. See id., 690–91. In reviewing
and reversing the Appellate Court, our Supreme Court
concluded that these concerns were not realized. Id.,
698. Unlike this case, however, where Judge Vitale had
not engaged in plea negotiations, D’Antonio, instead,
involved a case in which the sentencing judge had made
a pretrial offer that was not accepted and then presided
over the trial of two charges against the defendant, and
then sentenced him. See id., 663–66. It was from that
dual role that the ‘‘concerns’’ in D’Antonio arose.
In D’Antonio, our Supreme Court reviewed the pur-
poses of the procedural rule endorsed in State v. Niblack,
supra, 220 Conn. 280, which provides that, ‘‘a trial court
may participate in the negotiation of a plea agreement
between the state and the defendant, so long as a differ-
ent judge presides at trial and sentencing if the negotia-
tions are unsuccessful . . . .’’ State v. D’Antonio,
supra, 274 Conn. 660–61.
The court explained that ‘‘judicial participation in
plea negotiations is likely to impair the trial court’s
impartiality. The judge who suggests or encourages a
particular plea bargain may feel a personal stake in the
agreement (and in the quick disposition of the case
made possible by the bargain) and may therefore resent
the defendant who rejects his advice. . . . As a result
of his participation, the judge is no longer a judicial
officer or a neutral arbiter. Rather, he becomes or seems
to become an advocate for the resolution he has sug-
gested to the defendant.’’ (Internal quotation marks
omitted.) Id., 676.
Additionally, however, the court ‘‘conclude[d] that
establishing a violation of the Niblack rule does not,
therefore, excuse the defendant [who claims review
under the plain error doctrine] from demonstrat[ing]
that the failure to grant relief will result in manifest
injustice. . . . Rather, the defendant must demon-
strate on appeal that the record in the case actually
implicates the dangers of judicial participation in plea
negotiations . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 681. Our Supreme Court
‘‘look[ed] beyond the fact of the Niblack violation and
review[ed] the record as a whole for evidence of actual
or apparent prejudice to the defendant.’’ Id. ‘‘[I]n addi-
tion to judicial participation in unsuccessful plea negoti-
ations followed by a harsher sentence than initially was
offered,’’ our Supreme Court looked to: ‘‘(1) whether
the trial judge initiated the plea discussions with the
defendant . . . (2) whether the trial judge, through his
or her comments on the record, appears to have
departed from his or her role as an impartial arbiter
by either urging the defendant to accept a plea, or by
implying or stating that the sentence imposed would
hinge on future procedural choices, such as exercising
the right to trial; (3) the disparity between the plea offer
and the ultimate sentence imposed; and (4) the lack of
any facts on the record that explain the reason for
the increased sentence other than that the defendant
exercised his or her right to a trial or hearing.’’ (Internal
quotation marks omitted.) Id., 682.
Ultimately, our Supreme Court in State v. D’Antonio,
supra, 274 Conn. 658, overruled earlier Appellate Court
reversals under the plain error doctrine in State v. D’An-
tonio, 79 Conn. App. 683, 691, 830 A.2d 1187 (2003),
rev’d, 274 Conn. 658, 877 A.2d 696 (2005), and State v.
D’Antonio, 79 Conn. App. 696, 830 A.2d 1196 (2003),
rev’d, 274 Conn. 658, 877 A.2d 696 (2005), ruling that
the violation of the Niblack rule, although improper,
did not constitute plain error where the record showed
that the trial judge presided over proceedings in a fair
and evenhanded manner, no reference was made at
sentencing of the rejection of the prior plea offer, and
sentence was imposed in an appropriate manner only
on grounds involved in proceedings heard at trial. State
v. D’Antonio, supra, 274 Conn. 690–91, 697–98. Our
Supreme Court concluded that the ‘‘concerns of judicial
vindictiveness’’ contemplated by the Niblack rule were
not realized and, therefore, the Appellate Court improp-
erly reversed the judgment of the trial court. Id., 698.
In the present case, the disparity between the plea
offer and ultimate sentence imposed by Judge Vitale is
the only thread in common between the proceedings
before Judge Vitale, who had no involvement in plea
bargaining, and the factors D’Antonio considered perti-
nent in determining whether judicial participation in
unsuccessful plea negotiations mandates reversal under
the plain error doctrine.6 Not only is there no evidence
that Judge Vitale in any way participated in plea negotia-
tions in the defendant’s case, the defendant makes no
claim that any of the factors relevant to establishing
whether either the actual or apparent form of prejudice
are present, although he does emphasize that the sen-
tence imposed by Judge Vitale after trial exceeded the
sentence offered in the plea negotiations prior to trial
before another judge. In sum, the concerns about ‘‘judi-
cial vindictiveness’’ expressed in both Niblack and
D’Antonio are not present here.7 State v. D’Antonio,
supra, 274 Conn. 698. Specifically, Judge Vitale never
initiated plea discussions, did not participate in plea
negotiations, and nothing in the record suggests that
Judge Vitale departed from his role as an impartial
arbiter, that the sentence to be imposed would hinge
on the defendant’s exercise of his right to trial, or that
the length of the sentence to be imposed would be
influenced because the defendant exercised his consti-
tutional right to trial. Additionally, there are facts set
out by Judge Vitale from the trial evidence relating to
the seriousness of the crime and resulting near-death
injuries, which explain the length of the sentence Judge
Vitale imposed.
We next consider the defendant’s argument that the
sentencing court used the wrong standard applicable
to claims of actual partiality rather than the appearance
of it judged by whether a reasonable person might have
questioned the court’s impartiality in resolving the
defendant’s motion. In State v. Milner, supra, 325 Conn.
12–13, our Supreme Court held that where the record
shows (as it does here) that the court, in reviewing a
motion to recuse, had reviewed rule 2.11 of the Code
of Judicial Conduct,8 which covers both claims of actual
bias and the appearance of partiality, it is fair to assume
that the trial court reflected on the appropriate standard
for both and rendered a conclusion consistent with its
application of an objective inquiry.
The defendant concedes that the court had no actual
bias. In applying Practice Book § 1-22 (a)9 and rule 2.11
of the Code of Judicial Conduct governing recusal of
a judge, however, the reasonableness standard is an
objective one. ‘‘Thus, the question is not only whether
the particular judge is, in fact, impartial but whether a
reasonable person would question the judge’s impartial-
ity on the basis of all the circumstances.’’ State v. Lane,
supra, 206 Conn. App. 9. When examining such circum-
stances, it must be restated that the abuse of discretion
standard ‘‘requires us to indulge every reasonable pre-
sumption in favor of the correctness of the [trial] court’s
determination.’’ (Internal quotation marks omitted.) Id.,
8. Therefore, because our law presumes and expects
that a duly appointed judge, consistent with his oath
of office, will perform his duties impartially, the burden
rests with the party moving for recusal to show that it
is warranted. See State v. Milner, supra, 325 Conn. 12.
The following circumstances in the present case are
pertinent. Judge Vitale never participated in plea negoti-
ations, although another judge did. The defendant has
not shown that Judge Vitale had any role or involvement
in plea offers in connection with his case, nor was Judge
Vitale responsible for the mistake of a probation officer
who included mention of a rejected plea offer in his
presentence report to the court. When Judge Vitale
learned of this improper mention, he brought it to the
attention of both the prosecution and defense, ordered
it struck and redacted, and stated on the record it would
have no effect on the sentence to be imposed. Moreover,
as was true of the trial judge in State v. Milner, supra,
325 Conn. 12, Judge Vitale stated that he had reviewed
Practice Book § 1-22, rule 2.11 of the Code of Judicial
Conduct, and the relevant case law in ruling on the
defendant’s motion. In addition, he set forth additional
facts relevant to the objective inquiry of whether an
appearance of bias might exist, including that he made
no effort to confirm whether the alleged pretrial offer
had been made. In short, there is nothing in the record
to establish that Judge Vitale failed to consider whether
his impartiality might reasonably be questioned under
the objective standard. See State v. Milner, supra, 13
(‘‘[w]e do not presume error; the trial court’s ruling is
entitled to the reasonable presumption that it is correct
unless the party challenging the ruling has satisfied its
burden demonstrating the contrary’’ (internal quotation
marks omitted)). Accordingly, we reject the defendant’s
claim that Judge Vitale applied the incorrect legal stan-
dard.
Nevertheless, the defendant briefs several reasons why,
although there was no actual bias, the judge’s impartial-
ity might reasonably be questioned. First, the defendant
argues that the reference in the presentence report to
a pretrial sentence offer created, in effect, a floor that
Judge Vitale, in sentencing, might have felt an ‘‘obliga-
tion’’ to exceed. We disagree. Whatever prior offer was
made at a pretrial hearing before another judge, Judge
Vitale made clear that he had been unaware of it and that
it would have no impact whatsoever on the sentence
he imposed. Instead, he based his sentence on proper
considerations. He had sat through a lengthy trial where
there were days of evidence about the defendant’s bru-
tal, unprovoked attack causing hospitalization and
extensive medical treatment necessary to save the vic-
tim’s life, which he referenced at sentencing. All of that
evidence, which the court heard, pertained to matters
for the sentencing court to take into account when
considering the need for punishment, deterrence and
protection of the public.
Second, despite the defendant’s claim to the contrary,
courts and sometimes even jurors are obligated and
expected to set aside irrelevant matter in the perfor-
mance of their duties to which they did not cause them-
selves to be subjected. See State v. Roy D. L., 339 Conn.
820, 842, 262 A.3d 712 (2021). In State v. Roy D. L.,
supra, 842, which involved an appeal from a bench trial,
our Supreme Court reiterated the long held presump-
tion that whenever ‘‘the court, act[s] as the trier of fact,
[it] consider[s] only properly admitted evidence when
it render[s] its decision.’’ In that case, the court also
noted that trial judges are less likely to be influenced
by improper remarks made by counsel during a bench
trial. See id., 843–44. These same presumptions apply
equally to an improper mention of a rejected plea offer
in a presentence investigation report given to the judge.
Third, the defendant urges that he was remorseful,
had a criminal record consisting of mostly misdemean-
ors, and was fifty-five years old. The court considered
all of those things, but found other factors, including
the defendant’s ‘‘cold and cunning premeditation’’ and
the life-threatening injuries inflicted, and concluded a
lenient sentence was not warranted for his crimes.
Finally, we do not place any significance on the defen-
dant’s reliance on the fact that both the sentence imposed
and the purported prior plea offer involved a figure of
twelve years.
On the basis of the foregoing, we determine that Judge
Vitale did not abuse his discretion in denying the defen-
dant’s motion for recusal. We conclude that from all
of the circumstances a reasonable person would not
question the judge’s impartiality. We thus conclude that
there was no appearance of partiality to warrant dis-
qualification of Judge Vitale, the trial judge at sentenc-
ing, based on a probation officer’s single mistaken refer-
ence in the presentence investigation report to a rejected
plea offer, particularly when it was Judge Vitale who
brought the officer’s mistake to the parties’ attention
and took immediate steps to deal with it fairly.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
1
Where necessary, we refer to Judge Vitale by name, but when our intent
is clear that it is he who is acting, we use the term court interchangeably.
2
The defendant also claimed on appeal that his right to confrontation
under the sixth amendment to the United States constitution was violated
by the hearsay testimony of a DNA analyst, but this claim was withdrawn
by defense counsel at oral argument before this court.
3
The actual time to be served was incorrectly stated in the presentence
investigation report from the Office of Adult Probation as eight years of
incarceration instead of the five years offered.
4
Citing State v. Milner, 325 Conn. 1, 5, 155 A.3d 730 (2017), the defendant
asserts that his claim is reviewable because the court treated his motion
as a motion to disqualify. We agree with the defendant that the claim as to
recusal was preserved and is reviewable.
5
The defendant asserts that by learning there were negotiations and that
an offer of twelve years suspended after eight years was made, the court
was informed that a fellow judge felt that twelve years was an appropriate
sentence and that eight years should be served. He further claims that a
reasonable person might believe that the court then felt an obligation to
sentence the defendant to something higher and that a reasonable person
might not view the court as a neutral party.
6
Unlike D’Antonio, the defendant was able to obtain review without resort
to the plain error doctrine and facing its heightened burden of proving
‘‘manifest injustice’’ because Judge Vitale took the initiative to treat the
defendant’s motion as a motion to recuse, which was then preserved for
appellate review. See State v. D’Antonio, supra, 274 Conn. 669.
7
As a further example of the lack of vindictiveness, after Judge Vitale
denied the defendant’s motion for a new trial as inappropriate and untimely,
Judge Vitale honored the defendant’s rights and heard arguments regarding
recusal, even though the defendant had filed no such motion or supporting
affidavit. See Practice Book § 1-23. These actions further show a lack of
any of the ‘‘concerns of judicial vindictiveness contemplated by the Niblack
rule . . . .’’ State v. D’Antonio, supra, 274 Conn. 698.
8
Rule 2.11 of the Code of Judicial Conduct provides in relevant part: ‘‘(a)
A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned including, but not limited
to, the following circumstances: (1) The judge has a personal bias or preju-
dice concerning a party or a party’s lawyer, or personal knowledge of facts
that are in dispute in the proceeding. . . .’’
9
Practice Book § 1-22 (a) provides in relevant part: ‘‘A judicial authority
shall, upon motion of either party or upon its own motion, be disqualified
from acting in a matter if such judicial authority is disqualified from acting
therein pursuant to Rule 2.11 of the Code of Judicial Conduct . . . .’’