State v. Crespo ( 2019 )

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STATE OF CONNECTICUT v. ANTHONY CRESPO
(AC 41111)
DiPentima, C. J., and Elgo and Bright, Js.
Syllabus
The defendant, who had been on probation as a result of his conviction of
charges of sexual assault and risk in injury to a child related to his
sexual abuse of a minor child, appealed to this court from the judgment
of the trial court finding him in violation of his probation. The defendant’s
probation had included special conditions imposed by the sentencing
court that required, inter alia, that he have no unsupervised contact with
minors under the age of sixteen, and that any supervisor be approved
by his treatment provider and supervising probation officer. In prepara-
tion for his release from incarceration, the defendant signed a certain
standardized form that was prepared by the Office of Adult Probation,
pursuant to statute (§ 53a-30 [b]), that prohibited him from being in the
presence of or having contact with children under the age of sixteen
without probation officer approval. The defendant’s probation officer,
S, thereafter obtained an arrest warrant after he received an anonymous
report that a fourteen year old was living at the apartment that the
defendant shared with his wife. At the probation violation hearing, S
described a meeting with the anonymous person, and the trial court
overruled the defendant’s objection to that testimony, which the defen-
dant claimed was hearsay and violated his right to confrontation. The
defendant thereafter moved to dismiss the violation of probation charge
on the ground that the approval condition on the standardized form
was inconsistent with the sentencing court’s supervisor requirement.
The trial court denied the motion to dismiss and then denied the defen-
dant’s motion for judicial disqualification, which was based on his claim
that certain of the court’s evidentiary rulings and its colloquy with
defense counsel about the filing of the motion to dismiss would lead a
reasonable defendant to believe that the court would be biased toward
the defendant. Held:
1. The defendant’s claim that the trial court violated his right to confrontation
when it overruled his objection to S’s testimony on confrontation
grounds without making a finding of good cause was not reviewable,
as the record was inadequate for review and the defendant failed to
distinctly raise that claim at trial; although defense counsel referenced
the confrontation clause in his objection, the defendant’s claim on appeal
was predicated on his fourteenth amendment right to due process, the
record reflected that he failed to distinctly raise at trial the inquiry that
the trial court was required to conduct, which entailed balancing his
interest in confronting the declarant with the state’s interest in not
producing the declarant and the reliability of the proffered hearsay, and
the defendant provided this court with no authority indicating that the
sixth amendment right to confrontation applied to probation revoca-
tion proceedings.
2. The defendant could not prevail on his claim that the trial court improperly
denied his motion to dismiss: the approval condition and the supervisor
condition of his probation complemented each other and were not inher-
ently inconsistent or contradictory, as the supervisor condition ensured
that a supervisor was present for any contact between the defendant
and a minor under the age of sixteen, and the approval condition ensured
that such contact was approved by his probation officer in the first
instance; moreover, because the defendant’s incarceration stemmed
from the sexual and physical assault of a six year old child, it was
entirely appropriate for the Office of Adult Probation to impose the
approval condition as a prerequisite to any supervised contact between
the defendant and minors under the age of sixteen.
3. The defendant’s unpreserved claim that the trial court improperly failed
to hold an evidentiary hearing on the veracity of certain allegations in
S’s arrest warrant affidavit was not reviewable; the defendant never
requested a hearing during the probation revocation proceeding and did
not distinctly raise that claim with the trial court, and, thus, the record
lacked the requisite findings as to whether any allegedly false statements
were knowingly and intentionally made with reckless disregard for the
truth, and whether those statements were necessary to the finding of
probable cause.
4. The trial court did not abuse its discretion in denying the defendant’s
motion for judicial disqualification: adverse rulings do not amount to
evidence of bias sufficient to support a claim of judicial disqualification,
and the defendant’s claim that the court offered no explanation for
denying his right to confront the witness against him was unfounded,
as the defendant failed to bring that concern distinctly to the court’s
attention and never requested an explanation or articulation from the
court on that ruling, as provided for in our rules of practice; moreover,
nothing in the transcript of the hearing reflected bias on the part of the
court, as defense counsel clarified in his colloquy with the court that
his concern regarding the filing of the motion to dismiss had nothing
to do with the court and offered an apology, which the court accepted.
5. The trial court’s finding that the defendant violated his probation was
not clearly erroneous, as that court reasonably could have found that
the defendant did not comply with the approval condition: the record
indicated that, prior to the defendant’s release from incarceration, he
reviewed and signed the terms and conditions of his probation, including
the approval condition, and thereby manifested his understanding of
the necessity to abide by those conditions, and S testified that the
approval condition obligated the defendant to obtain his approval prior
to having any contact with a minor child, and that the defendant had
admitted to him that the fourteen year old was staying at his residence
and that he was having contact with her; moreover, S testified that the
defendant had not obtained his approval for any such contact, and that
when S and another probation officer visited the defendant’s apartment,
they encountered a sixteen year old, who had informed them that the
fourteen year old was staying there and had done so at several intervals
throughout the year, and the court was free to credit S’s testimony.
Argued January 28—officially released June 18, 2019
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Middlesex and tried to the court, Suarez, J.;
thereafter, the court denied the defendant’s motion to
dismiss; subsequently, the court, Diana, J., denied the
defendant’s motion to disqualify the judicial authority;
thereafter, the court, Suarez, J., rendered judgment
revoking the defendant’s probation, from which the
defendant appealed to this court. Affirmed.
Michael S. Hillis, for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, former
state’s attorney, and Russell Zentner, senior assistant
state’s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Anthony Crespo, appeals
from the judgment of the trial court finding him in
violation of probation pursuant to General Statutes
§ 53a-32. On appeal, the defendant claims that (1) the
court improperly overruled an objection predicated on
the right to confront adverse witnesses without making
the requisite finding of good cause, (2) the court improp-
erly denied his motion to dismiss due to the imposition
of allegedly inconsistent conditions of probation, (3)
the court improperly failed to conduct an evidentiary
hearing pursuant to Franks v. Delaware, 438 U.S. 154,
98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (4) the court
abused its discretion in denying his motion for judicial
disqualification and (5) the evidence was insufficient
to sustain the court’s finding that the defendant violated
a condition of his probation. We affirm the judgment
of the trial court.
On April 23, 2007, the defendant pleaded guilty to
assault in the second degree in violation of General
Statutes § 53a-60 (a) (2), risk of injury to a child involv-
ing sexual contact in violation of General Statutes § 53-
21 (a) (2), and sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (A).1 At
sentencing, the court remarked: ‘‘This is some of the
worst treatment of a minor child that I have ever seen
in my years on the bench. In my opinion, Mr. Crespo,
you are a sexual deviant, and you are a violent and
physical human being, except that you are a violent
and physical human being toward those who cannot
defend themselves.’’ The court then sentenced the
defendant to a total effective term of sixteen years
incarceration, execution suspended after nine and one-
half years, followed by fifteen years of probation. The
special conditions of probation imposed by the court
required, inter alia, that the defendant have ‘‘no unsu-
pervised contact with minors under the age of sixteen
and that any supervisor be approved by both his treat-
ment provider and his supervising [probation] officer’’
(supervisor condition).
On December 8, 2014, in preparation for his release
from incarceration, the defendant signed several stan-
dardized forms prepared by the office of adult proba-
tion, including one titled ‘‘Sex Offender Conditions of
Probation.’’ Among the conditions specified therein and
marked applicable to the defendant was the following
requirement: ‘‘You will not be in the presence of minors,
nor have contact in any form, direct or indirect . . .
with children under the age of sixteen without Proba-
tion Officer approval. Any contact must be reported
immediately to a Probation Officer’’ (approval con-
dition).
On March 17, 2015, the defendant’s probationary
period commenced upon his release from the custody
of the Commissioner of Correction. In accordance with
the supervisor condition imposed by the court at sen-
tencing, the defendant’s wife, Rosa,2 subsequently was
approved as the defendant’s supervisor by his probation
officer, the treatment provider, and the victim’s
advocate.
Approximately nine months into the defendant’s pro-
bationary period, his probation officer, Michael Sulli-
van, received a report that a fourteen year old female
was living at the apartment that the defendant shared
with Rosa. Following an investigation, Sullivan obtained
an arrest warrant for the defendant’s violation of the
terms of his probation. In that application, Sullivan
alleged that the defendant had violated both the supervi-
sor condition and the approval condition of his proba-
tion. The defendant then was arrested and charged with
breaching the terms of his probation in violation of
§ 53a-32.
A probation revocation hearing commenced on
November 8, 2017, at which the court heard testimony
from Sullivan and Vanessa Valentin, a probation officer
who was involved in the investigation of the defendant’s
alleged violation of the terms of his probation. When
the state rested in the adjudicatory stage of that pro-
ceeding, the defendant moved to dismiss the charge on
the ground that the approval condition of his probation
was inconsistent with the supervisor condition ordered
by the trial court. After hearing argument from the par-
ties, the court denied that motion. Defense counsel then
asked the trial court to disqualify itself on the ground
of bias. In response, the court stated: ‘‘Because of the
seriousness of the matter before the court, because of
the fact that your client is facing incarceration and
because of the fact that you’ve raised the issue now,
at this late stage of the proceeding, I am going to ask
that another judge hear your motion to disqualify
. . . .’’ Following a recess, Judge Leo V. Diana presided
over a hearing on the defendant’s motion for judicial
disqualification, at the conclusion of which the court
denied the motion.
The adjudicatory phase of the probation revocation
hearing resumed on November 17, 2017. The defendant
presented the testimony of one witness, the fourteen
year old female who allegedly resided at the defendant’s
apartment for a period of time in December, 2016.3
When her testimony concluded, the defendant rested,
and the court heard argument from the parties. The
prosecutor argued that the evidence demonstrated that
the defendant had violated the approval condition of
his probation. The court agreed and found, by a fair
preponderance of the evidence, that the defendant had
violated the terms of his probation. During the disposi-
tional phase of the proceeding, the court revoked the
defendant’s probation and sentenced him to a term
of six and one-half years of incarceration, execution
suspended after five years, followed by ten years of
probation.4 This appeal followed.
I
The defendant first contends that the court improp-
erly overruled his objection to certain testimony on
confrontation grounds without making a specific find-
ing of good cause. The state counters that this claim is
unpreserved. We agree with the state.
The following additional facts are relevant to the
defendant’s claim. During his testimony at the probation
revocation hearing, Sullivan stated that he had received
an anonymous report regarding the defendant’s alleged
violation of the terms of his probation. When Sullivan
then proceeded to describe a meeting with that anony-
mous person, defense counsel objected on hearsay
grounds. The court summarily overruled that objection.
Sullivan then was asked about the substance of his
conversation with that anonymous person, to which
defense counsel again objected, stating: ‘‘Your Honor,
I move to strike all of that inquiry for two reasons. One,
it isn’t just that there were relaxed rules of evidence
for these procedures, but the confrontation clause is
my client’s constitutional right. I have no way of doing
any of this with this officer because he’s not the person
that witnessed or saw any of this. So, it’s not just an
evidentiary violation, it’s a violation of my client’s con-
stitutional rights to confront. And therefore, again, also,
it contained total hearsay, which is hearsay within hear-
say within this. And I believe that they should produce
the witness so that witness can be properly cross-exam-
ined. Failing to do that, this testimony, should be
stricken.’’ In response, the court stated, ‘‘Overruled.’’
The prosecutor then resumed his questioning of Sulli-
van, and defense counsel thereafter made no further
mention of the confrontation issue.
As a preliminary matter, we note that the defendant
has provided this court with no authority indicating
that the right to confrontation contained in the sixth
amendment to the United States constitution applies
to probation revocation proceedings. See, e.g., State v.
Esquilin, 179 Conn. App. 461, 472 n.10, 179 A.3d 238
(2018), and cases cited therein (noting that ‘‘an over-
whelming majority of federal circuit and state appellate
courts that have addressed this issue have concluded
that [the confrontation standard articulated in Craw-
ford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004)] does not apply to a revocation of
probation hearing’’). Although defense counsel refer-
enced the ‘‘confrontation clause’’ in his objection before
the trial court, his claim on appeal is predicated on the
due process rights contained in the fourteenth amend-
ment to the United States constitution, which mandate
‘‘certain minimum procedural safeguards before that
conditional liberty interest [of probation] may be
revoked’’; State v. Polanco, 165 Conn. App. 563, 570,
140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708
(2016); including the right to question adverse wit-
nesses.5 Id., 571.
The exercise of the right to confront adverse wit-
nesses in a probation revocation proceeding is not abso-
lute, but rather entails a balancing inquiry conducted
by the court, in which the court ‘‘must balance the
defendant’s interest in cross-examination against the
state’s good cause for denying the right to cross-exam-
ine. . . . In considering whether the court had good
cause for not allowing confrontation or that the interest
of justice [did] not require the witness to appear . . .
the court should balance, on the one hand, the defen-
dant’s interest in confronting the declarant, against,
on the other hand, the government’s reasons for not
producing the witness and the reliability of the prof-
fered hearsay.’’ (Citation omitted; internal quotation
marks omitted.) Id. To properly preserve for appellate
review a confrontation claim in this context, our prece-
dent instructs that a defendant must distinctly raise the
balancing issue with the court at the probation revoca-
tion proceeding. If the defendant fails to do so, the
claim is deemed unpreserved. See State v. Tucker, 179
Conn. App. 270, 278–79 n.4, 178 A.3d 1103 (‘‘a defen-
dant’s due process claim is unpreserved where the
defendant never argued to the trial court that it was
required to balance his interest in cross-examining the
victim against the state’s good cause for not calling the
victim as a witness’’), cert. denied, 328 Conn. 917, 180
A.3d 963 (2018); State v. Esquilin, supra, 179 Conn.
App. 474 (same); State v. Polanco, supra, 165 Conn.
App. 571 (same).
The record plainly reflects that the defendant failed
to distinctly raise that claim in the present case. For
that reason, resort to the familiar rubric of Golding
review is unavailing,6 as the record in such circum-
stances is inadequate to review the alleged due process
violation. See State v. Esquilin, supra, 179 Conn. App.
477–78. Accordingly, we decline to review the merits
of the defendant’s unpreserved claim.
II
The defendant next claims that the court improperly
denied his motion to dismiss on the ground that the
approval condition included on the sex offender condi-
tions of probation form that he signed in preparation
for his release from incarceration was inconsistent with
the supervisor condition imposed by the court at his
sentencing. We disagree.
The proper interpretation of conditions of probation
presents a question of law. State v. Faraday, 268 Conn.
174, 191, 842 A.2d 567 (2004). Our review, therefore,
is plenary.
Our analysis begins with General Statutes § 53a-30
(b), which ‘‘expressly allows the office of adult proba-
tion to impose reasonable conditions on probation.’’
State v. Thorp, 57 Conn. App. 112, 116, 747 A.2d 537,
cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). Such
‘‘[p]ostjudgment conditions imposed by adult probation
are not a modification or enlargement of some condition
already imposed by the court, but are part of an adminis-
trative function that [§ 53a-30 (b)] expressly authorizes
as long as it is not inconsistent with any previously
court-imposed condition.’’ State v. Johnson, 75 Conn.
App. 643, 652, 817 A.2d 708 (2003).
More specifically, § 53a-30 (b) provides: ‘‘When a
defendant has been sentenced to a period of probation,
the Court Support Services Division may require that
the defendant comply with any or all conditions which
the court could have imposed under subsection (a)
of this section which are not inconsistent with any
condition actually imposed by the court.’’ Section 53a-
30 (b) thus contains two requirements. First, the condi-
tion of probation contemplated by the Office of Adult
Probation must be one that the trial court could have
imposed under § 53a-30 (a). Second, the condition must
not be inconsistent with any condition of probation
previously imposed by the court.
The state submits, and the defendant concedes, that
the approval condition was one which the sentencing
court could have imposed. Pursuant to § 53a-30 (a), the
sentencing court was authorized to impose any condi-
tion ‘‘reasonably related to the defendant’s rehabilita-
tion.’’ Given the context of the defendant’s guilty plea;
see footnote 1 of this opinion; we agree that the court
could have imposed the approval condition at the time
of sentencing.
With respect to the second requirement of § 53a-30
(b), the defendant claims that the approval condition
is inconsistent with the supervisor condition that the
court imposed at sentencing. This court previously has
equated the term ‘‘inconsistent,’’ as it is used in § 53a-
30 (b), with incompatibility. State v. Johnson, supra,
75 Conn. App. 653. This court has further explained
that, to run afoul of the mandate of § 53a-30 (b), the
condition imposed by the Office of Adult Probation
must be ‘‘in direct contradiction to [a] condition
imposed by the sentencing court . . . .’’ State v. Arm-
strong, 86 Conn. App. 657, 664, 862 A.2d 348 (2004),
cert. denied, 273 Conn. 909, 870 A.2d 1081 (2005).
We disagree with the defendant that the approval
condition imposed by the Office of Adult Probation
prior to his release from incarceration is incompatible
with, and in direct contradiction to, the supervisor con-
dition ordered by the court at sentencing. Rather, those
two conditions complement each other. Whereas the
supervisor condition ensured that a supervisor was pre-
sent for any contact between the defendant and a minor
under the age of sixteen, the approval condition ensured
that such contact was approved by his probation officer
in the first instance. We perceive nothing inherently
inconsistent or contradictory about those two condi-
tions of probation.
The core functions of probation officers are ‘‘to guide
the [probationer] into constructive development’’ and
to prevent ‘‘behavior that is deemed dangerous to the
restoration of the individual into normal society.’’ Mor-
rissey v. Brewer, 408 U.S. 471, 478, 92 S. Ct. 2593, 33
L. Ed. 2d 484 (1972). Under Connecticut law, probation
officers are obligated to ‘‘keep informed of [the proba-
tioner’s] conduct and condition and use all suitable
methods to aid and encourage him and to bring about
improvement in his conduct and condition.’’ General
Statutes § 54-108 (a). Because the defendant’s incarcer-
ation in the present case stemmed from the sexual and
physical assault of a six year old child, it was entirely
appropriate for the Office of Adult Probation, in effectu-
ating that statutory obligation, to impose the approval
condition as a prerequisite to any supervised contact
between the defendant and minors under the age of
sixteen. We therefore reject the defendant’s claim that
the approval and supervisor conditions of his probation
are incompatible or inconsistent.
III
The defendant claims the court improperly failed to
hold an evidentiary hearing pursuant to Franks v. Dela-
ware, supra, 438 U.S. 154, on the veracity of certain
allegations contained in the arrest warrant affidavit pre-
pared by Sullivan. In Franks, the United States Supreme
Court held that ‘‘where the defendant makes a substan-
tial preliminary showing that a false statement know-
ingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is neces-
sary to the finding of probable cause, the [f]ourth
[a]mendment requires that a hearing be held at the
defendant’s request.’’ Id., 155–56. As our Supreme Court
has explained, before a defendant is entitled to a Franks
hearing, the defendant must ‘‘(1) make a substantial
preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affida-
vit; and (2) show that the allegedly false statement is
necessary to a finding of probable cause.’’ (Internal
quotation marks omitted.) State v. Ferguson, 260 Conn.
339, 363, 796 A.2d 1118 (2002).
In State v. Bangulescu, 80 Conn. App. 26, 832 A.2d
1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003),
this court held that a defendant must distinctly raise a
request for a Franks hearing before the trial court in
order to preserve the claim for appellate review. As
it stated: ‘‘[W]hen confronted with [the objectionable]
testimony at trial, the defendant did not seek a Franks
hearing; therefore, the court was not given the opportu-
nity to determine whether [the witness’] inaccurate
statement was made knowingly and intentionally, or
with reckless disregard for the truth . . . or whether
it was necessary to the finding of probable cause . . . .
As a consequence, the defendant’s first claim must fail,
as it does not meet the threshold requirement of Gold-
ing that the record be adequate for appellate review.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 33–34. That conclusion comports
with the purpose of the preservation requirement, as
‘‘the essence of preservation is fair notice to the trial
court . . . .’’ State v. Miranda, 327 Conn. 451, 465, 174
A.3d 770 (2018).
The logic of Bangulescu compels the same result in
the present case, as it is undisputed that the defendant
never requested a Franks hearing at any time during the
probation revocation proceeding. The record further
reveals that he did not distinctly raise with the trial
court the claim he now pursues on appeal. As such, the
claim is unpreserved.
Although unpreserved claims of constitutional
dimension nonetheless may qualify for appellate review
under Golding, such recourse is not available in the
present case. Because the claim never was presented
to the trial court, the record lacks the requisite findings
as to (1) whether any allegedly false statements were
knowingly and intentionally made with reckless disre-
gard for the truth, and (2) whether those statements
were necessary to the finding of probable cause. The
defendant therefore cannot surmount Golding’s first
prong, as the record is inadequate to review his unpre-
served claim.7
IV
The defendant also claims that the court abused its
discretion in denying his motion for judicial disqualifi-
cation on the ground of bias. We do not agree.
The following additional facts are relevant to this
claim. After the state rested its case-in-chief during the
adjudicatory stage of the hearing, defense counsel made
an oral motion to dismiss. Counsel then informed the
court that he had ‘‘a written memorandum in support
of my motion to dismiss.’’ In response, the prosecutor
stated that he had not seen the defendant’s motion.
The court then recessed the proceeding to provide the
prosecutor with an opportunity to review the motion.
When the hearing resumed, the court noted that the
written motion that the defendant submitted was dated
October 19, 2017. At that time, the prosecutor indicated
that he was ‘‘still not prepared . . . to respond ade-
quately. The motion is dated October 19th, and here
we are, November 8th, and I just was handed it right
after the state rested its case.’’ The prosecutor thus
requested an additional ten to fifteen minutes to review
the defendant’s motion. Defense counsel asked to be
heard and stated that he could not have filed that motion
until he had heard the state’s evidence. The following
colloquy then occurred:
‘‘[Defense Counsel]: I’ve been a trier of federal and
state trials my whole adult . . . life. And good pru-
dence is dictated to me that I wait to see all the evidence
before I would file a motion that would argue the evi-
dence. And the evidence before this court was that [the
sentencing judge] issued a ruling that [the defendant]
could have contact with minors as long as there was
. . . supervision, the supervision was vetted, therefore
there’s no violation of [the court’s] order. What’s been
confused here—
‘‘The Court: Well, let’s not argue the motion,
counsel—
‘‘[Defense Counsel]: Oh, I know. . . . [I]f [the prose-
cutor] wants more time to argue this, I don’t have any
problem with it, at all, or the judge to review it. There’s
no urgency in this. But I really could only file it. I want
to make sure because Your Honor doesn’t know me,
as a practitioner, but I can tell you that seasoned defense
counsel would wait until the evidence came out before
they would file anything arguing the evidence.
‘‘The Court: Well, I, too, have been a seasoned judge
for some time.
‘‘[Defense Counsel]: Right.
‘‘The Court: And I know how to handle this procedure.
I have been sitting in the criminal bench for some period
of time. I take a little offense to the lecture from counsel
as to whether or not this should have been filed now
or otherwise.
‘‘[Defense Counsel]: I certainly apologize to the court
. . . it had nothing to do with the court.
‘‘The Court: I think it’s fair, then—I accept your
apology.
‘‘[Defense Counsel]: Yeah, I do. That was not the
intention, the intention was to explain my own behavior,
not imply anything against the court.
‘‘The Court: All right, well I think it’s fair for every-
body to be able to have an opportunity to review this
memorandum that’s been filed just minutes ago, and
it’s now eight pages in length with an affidavit also
that’s attached from a person who has not testified in
this court.’’
With the agreement of both parties, the court then
took a midday recess to allow the prosecutor additional
time to review the defendant’s motion to dismiss. When
that recess concluded, the court heard argument on the
merits of the motion from both the prosecutor and
defense counsel. The court then denied the motion to
dismiss and asked defense counsel if he wanted to put
on any evidence. In response, defense counsel stated:
‘‘Your Honor, at this time I’m going to ask that the
court disqualify itself, and I move for your recusal. A
reasonable defendant sitting in this chair . . . would
find that this court’s ruling on the evidence in the begin-
ning of the case, as well as the discord that Your Honor
and I had prior to the break, would find that you would
be partial and biased towards him; he felt that way.
And I move that you disqualify yourself and recuse
yourself from this hearing.’’ After acknowledging the
gravity of that request, the court indicated that it would
ask another judge to rule on the defendant’s motion for
judicial disqualification.
Following a recess, Judge Diana presided over a hear-
ing on the defendant’s motion, at which the court heard
argument from the parties and playback of the foregoing
colloquy between defense counsel and the court. In
ruling on the motion, the court stated in relevant part:
‘‘It’s a fundamental principle that to demonstrate bias
sufficient to support a claim of judicial disqualification,
the due administration of justice requires that such a
demonstration be based on more than opinion or con-
clusion. Vague and unverified assertions of opinion,
speculation and conjecture cannot support a motion to
recuse. The reasonable standard . . . is an objective
one. The question is not only whether the particular
judge is, in fact, impartial, but whether a reasonable
person would question a judge’s impartiality, based on
the basis of all the circumstances. The law presumes
that a duly elected or appointed judge, consistent with
their oath of office, will perform their duties impartially
and that they’re able to put aside personal impressions
regarding a party, the burden rests upon the party urging
disqualification to show that it is warranted. . . .
Based upon the evidence . . . my review of the [rele-
vant] Practice Book section[s], the Code of Judicial
Conduct, the exchange between counsel and [the trial
court], the apology [by defense counsel] and the accep-
tance [of that apology by the court, the facts of this
case do] not rise to [the level of] a disqualification. The
motion, therefore . . . is denied.’’
As our Supreme Court has observed, ‘‘[r]ule 2.11 (a)
(1) of the Code of Judicial Conduct provides in relevant
part that [a] judge shall disqualify himself . . . in any
proceeding in which the judge’s impartiality might rea-
sonably be questioned including, but not limited to, the
following circumstances . . . [t]he judge has a per-
sonal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dis-
pute in the proceeding. In applying this rule, [t]he rea-
sonableness 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 impartiality on the basis of all the
circumstances. . . . Moreover, it is well established
that [e]ven in the absence of actual bias, a judge must
disqualify himself in any proceeding in which his impar-
tiality might reasonably be questioned, because the
appearance and the existence of impartiality are both
essential elements of a fair exercise of judicial author-
ity. . . . Nevertheless, because the law presumes that
duly elected or appointed judges, consistent with their
oaths of office, will perform their duties impartially
. . . the burden rests with the party urging disqualifica-
tion to show that it is warranted.’’ (Internal quotation
marks omitted.) State v. Milner, 325 Conn. 1, 12, 155
A.3d 730 (2017).
Appellate review of the trial court’s denial of a defen-
dant’s motion for judicial disqualification ‘‘is subject to
the abuse of discretion standard. . . . That standard
requires us to indulge every reasonable presumption in
favor of the correctness of the court’s determination.’’
(Internal quotation marks omitted.) State v. Petaway,
107 Conn. App. 730, 736, 946 A.2d 906, cert. denied, 289
Conn. 926, 958 A.2d 162 (2008).
In the present case, the defendant claims that a rea-
sonable person would question the trial court’s impar-
tiality on the basis of certain adverse rulings that it made
during the hearing and the aforementioned colloquy
regarding the filing of the defendant’s motion to dismiss.
With respect to the former, it suffices to note that
‘‘adverse rulings by the judge do not amount to evidence
of bias sufficient to support a claim of judicial disqualifi-
cation.’’ State v. Bunker, 89 Conn. App. 605, 613, 874
A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909
A.2d 521 (2006). We further observe that the defendant’s
complaint that the court ‘‘offered no explanation for
denying [his] right to confront the witness against him’’
is unfounded, as the defendant failed to bring that con-
cern distinctly to the court’s attention; see part I of
this opinion; and he never requested an explanation or
articulation from the court on that ruling, as expressly
provided for in our rules of practice. See Practice Book
§§ 64-1 and 66-5.
We also agree with Judge Diana that the colloquy
regarding the filing of the motion to dismiss does not
evince any partiality or bias on the part of the court.
In that exchange, defense counsel clarified that his con-
cern regarding the filing of the motion to dismiss ‘‘had
nothing to do with the court’’ and offered an apology,
which the court promptly accepted, stating, ‘‘I think it’s
fair then—I accept your apology.’’ The court proceeded
to grant a recess to afford the prosecutor additional
time to review the defendant’s motion and later heard
argument from the parties before ruling on the merits
of the motion. In sum, nothing in the transcript of the
November 8, 2017 hearing reflects bias on the part of
the court.
On our thorough review of the record before us, we
cannot conclude that Judge Diana abused his discretion
in concluding that a reasonable person would not ques-
tion the court’s impartiality on the basis of the circum-
stances present in this case. Accordingly, the
defendant’s claim fails.
V
As a final matter, the defendant contends that the
evidence adduced at the probation revocation hearing
was insufficient to sustain the court’s finding that he
violated the terms of his probation. We disagree.
Under Connecticut law, a challenge to the court’s
determination during the adjudicatory phase of a viola-
tion of probation proceeding that a probationer has
violated a condition of probation is governed by the
clearly erroneous standard of review. As our Supreme
Court has explained, in that adjudicatory phase the
‘‘trial court initially makes a factual determination of
whether a condition of probation has been violated.
In making its factual determination, the trial court is
entitled to draw reasonable and logical inferences from
the evidence. . . . Our review is limited to whether
such a finding was clearly erroneous. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . In making
this determination, every reasonable presumption must
be given in favor of the trial court’s ruling.’’8 (Internal
quotation marks omitted.) State v. Hill, 256 Conn. 412,
425–26, 773 A.2d 931 (2001).
In the present case, the record indicates that, prior
to his release from incarceration, the defendant
reviewed and signed the terms and conditions of his
probation, including the approval condition, and
thereby manifested his understanding of the necessity
to abide by those conditions. At trial, Sullivan testified
that the approval condition obligated the defendant to
obtain his approval prior to having any contact with a
minor child. Sullivan explained that he received a report
that a fourteen year old female had been residing in
the defendant’s apartment for approximately one week
in December, 2016. When Sullivan confronted the defen-
dant about that accusation, the defendant initially
denied having any contact with her, but later broke
down and started crying. Sullivan testified that he asked
the defendant why he was crying, and that the defendant
then admitted that the fourteen year old female ‘‘was
staying at his residence and that he was having contact
[with her].’’
Sullivan and Valentin also testified that the investiga-
tion also included a visit to the defendant’s apartment,
where they encountered a sixteen year old who
informed them that the fourteen year old female cur-
rently ‘‘was staying at [the defendant’s] residence’’ and
had done so at several intervals throughout the year,
including holidays and recesses from school. Sullivan
testified that the defendant had not obtained his
approval for any such contact. The court, as trier of
fact, was free to credit that testimony. State v. Dunbar,
188 Conn. App. 635, 642, 205 A.3d 747, cert. denied, 331
Conn. 926, A.3d (2019).
On the basis of that evidence, the court reasonably
could find that the defendant violated his probation
by not complying with the approval condition of his
probation. The court’s determination, therefore, is not
clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Evidence presented at the probation revocation hearing indicated that
the defendant’s plea followed allegations of sexual and physical assault of
a six year old child, ‘‘including digital penetration, fondling and physical
abuse, which included beating her with a wire clothes hanger, and . . .
punching her in the face, leaving bruising.’’
2
Rosa did not testify at the probation revocation proceeding. Although
the record indicates that Rosa was the defendant’s wife at all relevant times,
her surname is not specified therein. We therefore refer to her in this opinion
by her first name.
3
Although she acknowledged that Rosa was her aunt, the fourteen year
old female testified that she had never met the defendant. She further
testified that she had never visited the residence the defendant shared with
Rosa. At the conclusion of the adjudicatory stage of the hearing, the court
found that the fourteen year old female’s testimony ‘‘was completely not
credible’’ and that it contradicted the defendant’s admission to the contrary.
4
On appeal, the defendant raises no claim with respect to the dispositional
phase of the probation revocation proceeding.
5
In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d
484 (1972), a case involving a violation of parole hearing, the United States
Supreme Court held that ‘‘minimum requirements of due process’’ mandate,
inter alia, that a defendant be afforded ‘‘the right to confront and cross-
examine adverse witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation) . . . .’’ The United States
Supreme Court subsequently held that the due process requirements recog-
nized in Morrissey extend to probation revocation proceedings. Gagnon v.
Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
6
Under 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 constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) 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).
7
In light of our conclusion that the record is inadequate for review, we
need not consider the state’s alternate contention that probation revocation
hearings, being akin to a civil proceeding; see State v. Taveras, 183 Conn.
App. 354, 364, 193 A.3d 561 (2018); fall outside the scope of Franks.
8
By contrast, review of the court’s determination during the dispositional
phase of a probation revocation proceeding as to whether revocation is
warranted is governed by the abuse of discretion standard. See State v.
Preston, 286 Conn. 367, 377, 944 A.2d 276 (2008).