State v. Santiago

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STATE OF CONNECTICUT v. ISRAEL SANTIAGO
(AC 42234)
Alvord, Elgo and Alexander, Js.
Syllabus
Convicted of various crimes in connection with his actions toward two
police officers when they attempted a stop of his motor vehicle, the
defendant appealed to this court. The police officers, L and M, separately
responded to an early morning call regarding a suspicious individual in
a silver car who appeared to be attempting to break into vehicles in a
residential neighborhood. On their arrival, the officers encountered the
defendant driving a vehicle matching that description and followed him,
each in their own marked cruiser, down a dead end road. Near the end
of the road, the defendant turned his car around. After an unsuccessful
attempt to make a vehicle stop, L angled his cruiser across the road to
try to prevent the defendant from leaving the area. The defendant drove
over the curb and around L’s vehicle. M then engaged his lights and
siren and similarly angled his cruiser across the road to try and block
the defendant. The defendant hit M’s cruiser while attempting to drive
around it. Assuming that the crash had disabled the defendant’s vehicle,
both L and M exited their cruisers and ordered the defendant to shut
off his vehicle. Instead, the defendant reversed quickly toward L, who
had to kick off the side of the defendant’s car to avoid being hit by it.
The defendant again advanced his car toward M, who was then standing
near the back of his vehicle. The defendant briefly stopped his car
between the two officers. After unsuccessfully trying to open the defen-
dant’s car door, L used the butt of his gun to break open the driver’s
side window of the defendant’s vehicle, in an attempt to grab him. The
defendant again quickly reversed and L stumbled out of the car’s path.
M, believing that L had been hit, fired a single shot at the defendant’s
vehicle in an attempt to disable it. The defendant then drove around
M’s cruiser and continued approximately one quarter of a mile down
the road before his vehicle broke down. The defendant exited the vehicle
and ran into the woods. He was apprehended shortly thereafter. Various
items, which had been reported as missing from the vehicles of area
residents, were recovered from the defendant’s car. Although the jury
found the defendant not guilty of attempt to commit assault in the first
degree with respect to his actions against L, he was convicted of one
count of attempt to commit assault in the first degree with respect to
his actions against M, two counts of attempt to commit assault of a
peace officer with respect to his actions against L and M, respectively,
and one count of engaging an officer in pursuit. On appeal, the defendant
claimed that there was insufficient evidence to support his conviction
of attempt to commit assault in the first degree and that the trial court
erred in accepting the jury’s verdict of guilty of attempt to commit
assault of a peace officer because that crime was not legally cognizable
or, in the alternative, because the evidence was insufficient to support
his conviction of both counts. Held:
1. The evidence was sufficient to support the defendant’s conviction of
attempt to commit assault in the first degree: there was ample evidence
from which the jury reasonably could have found, by the cumulative
impact of the evidence and the rational inferences permissibly drawn
therefrom, that the defendant’s intent was proven beyond a reasonable
doubt, as the jury reasonably could have found that the defendant was
aware of M’s presence and location, that he intended to hit M with his
car, that he had a motive to assault M, as the defendant’s car had several
stolen items in it that evening, many plainly visible, and that he did not
mistakenly accelerate toward M.
2. The trial court did not err in accepting the jury’s verdict of guilty of two
counts of attempt to commit assault of a peace officer: the defendant’s
claim that the crime was not legally cognizable was unpreserved because
he failed to raise it at trial; moreover, the claim failed under the third
prong of State v. Golding (213 Conn. 233), because the defendant failed
to establish that there was a constitutional violation, as this court had
previously determined in State v. Jones (96 Conn. App. 634), that attempt
to commit assault of a peace officer was a legally cognizable crime;
furthermore, the defendant’s claim that there was insufficient evidence
of the requisite intent to support his conviction pertaining to his actions
against M failed because the jury reasonably could have found that the
defendant intended to cause serious physical injury to M, which would
be sufficient to support a finding that the defendant acted with an intent
to prevent M from performing his duties; additionally, the defendant
abandoned his claim that there was insufficient evidence of the requisite
intent to support his conviction pertaining to his actions against L
because his briefing was devoid of any analysis to support his claim,
merely incorporating his arguments set forth with respect to his chal-
lenge to his conviction of attempt to commit assault in the first degree,
which related only to his actions against M, and, accordingly, this court
declined to review the claim.
Argued February 17—officially released August 3, 2021
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of attempt to commit
assault in the first degree and attempt to commit assault
of a peace officer, and with one count of the crime of
engaging an officer in pursuit, brought to the Superior
Court in the judicial district of New Haven, geographical
area number twenty-three, and tried to the jury before
B. Fischer, J.; verdict and judgment of guilty of one
count of attempt to commit assault in the first degree,
two counts of attempt to commit assault of a peace
officer and one count of engaging an officer in pursuit,
from which the defendant appealed to this court.
Affirmed.
Megan L. Wade, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Karen Roberg, assistant state’s attorney,
for the appellee (state).
Opinion
ALVORD, J. The defendant, Israel Santiago, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of attempt to commit assault in the
first degree in violation of General Statutes §§ 53a-49
(a) (2) and 53a-59 (a) (1) and two counts of attempt to
commit assault of a peace officer in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-167c (a) (1).1 On
appeal, the defendant claims that (1) the evidence was
insufficient to support his conviction of attempt to com-
mit assault in the first degree and (2) the crime of
attempt to commit assault of a peace officer is not
legally cognizable and, alternatively, the evidence was
insufficient to support his conviction of both counts of
attempt to commit assault of a peace officer. We affirm
the judgment of the trial court.
The following facts, which reasonably could have
been found by the jury, and procedural history are rele-
vant to this appeal. On the afternoon of November 8,
2014,2 the defendant purchased a bottle of brandy and
met his friend, Anthony Tuozzola,3 to purchase and use
heroin. Thereafter, the defendant and Tuozzola drove
to Waterbury. Throughout the afternoon and evening,
the two men continued to drink.4 At around 10 o’clock
in the evening, the defendant and Tuozzola drove to a
bar in downtown New Haven. At around midnight, after
he had consumed four or five alcoholic beverages at
the bar, the defendant and Tuozzola drove to North
Branford.5 On the way, the defendant ‘‘took a wrong
turn’’ and ended up stopping the car on the side of
Seahill Road in North Branford.
A resident of Seahill Road, Christopher Hills, testified
that, after the defendant and Tuozzola stopped their
car on the side of the road,6 he observed the defendant7
attempt to break into a car that was parked in his
driveway. Specifically, Hills testified that, just after mid-
night, he heard a car park on the street outside his
home and he went to his window to see what was
happening. Hills observed a silver car parked on the
road outside his house; he watched the defendant enter
his driveway, approach his wife’s car, which was parked
in the driveway, and attempt to open the door to his
wife’s car. Thereafter, Hills called the police.
Officers Corey Lemmons and Christopher Miseren-
dino of the North Branford Police Department
responded separately to Hills’ call. While Officer Lem-
mons drove through the neighborhood looking for the
car that Hills described, Officer Miserendino responded
to Hills’ address at 410 Seahill Road.8 On arriving, Offi-
cer Miserendino met Hills in the driveway; moments
after he arrived, Hills alerted the officer that the silver
car that he had observed earlier was driving by his
residence on Seahill Road again. Officer Miserendino
then returned to his cruiser to catch up to the silver car.
Shortly thereafter, Officer Miserendino spotted Officer
Lemmons’ police cruiser following the silver car. The
silver car headed down Seahill Road, toward a dead
end, followed first by Officer Lemmons and then by
Officer Miserendino. Shortly after Officer Miserendino
spotted Officer Lemmons, Officer Lemmons engaged
his police lights.9 Just before the trio reached the dead
end, the silver car began turning away from the dead
end. Officer Lemmons attempted to make a vehicle
stop, but he was unsuccessful. In a further attempt to
stop the silver car, Officer Lemmons turned his cruiser
at an angle across the road, attempting to block the
silver car’s path. Instead of pulling over or stopping,
the silver car ‘‘popped the curb’’ in front of Officer
Lemmons’ cruiser and went around the cruiser.
Seeing the silver car maneuver around Officer Lem-
mons’ cruiser, Officer Miserendino engaged his lights
and siren and angled his cruiser across both lanes of
the road in another attempt to stop the silver car. Again,
the silver car did not stop; rather, the driver attempted
to drive around Officer Miserendino’s cruiser, only to
collide with the passenger side rear of the cruiser, caus-
ing damage. On observing the collision and assuming
that both cars were disabled, Officer Lemmons exited
his cruiser and ran up Seahill Road toward Officer Mis-
erendino’s cruiser and the silver car.10
Officer Miserendino similarly assumed that the colli-
sion disabled the silver car and would allow him to
take the driver into custody. Officer Miserendino exited
his cruiser, drew his firearm, and ordered the driver to
shut off the silver car’s engine and to show his hands.
The defendant did not comply. At this point, Officer
Miserendino was standing so that his cruiser was
between him and the silver car and it was at this time
when the officer first observed the driver of the silver
car, who he later identified as the defendant, and his
passenger. Officer Miserendino observed that the pas-
senger looked scared and that the defendant seemed
to have no expression at all.
Officer Miserendino repeated his orders for the defen-
dant to shut off the silver car’s engine and show his
hands. Again, the defendant failed to comply with the
orders and, ‘‘without warning,’’ the car began to reverse
quickly toward the area where Officer Lemmons
stood.11 In order to avoid being hit, Officer Lemmons
had to kick off the side of the silver car and push himself
to safety.
Despite already attempting to escape around the rear
of Officer Miserendino’s cruiser, the defendant again
proceeded to drive the silver car toward the rear of
Officer Miserendino’s cruiser, where Officer Miseren-
dino stood.12 At this point, Officer Miserendino’s cruiser
was no longer between Officer Miserendino and the
silver car, and he had to evade the silver car in order
to avoid being hit. Then, the silver car came to a stop
and, for a moment, it remained somewhat stationary13
between the two officers and the two police cruisers.
Because the defendant had continued to ignore all
orders, Officer Lemmons attempted to open the driver’s
side door of the silver car to apprehend the defendant.
The car door was locked, however, so Officer Lemmons
instead used the butt of his service weapon to break
open the driver’s side window of the silver car. After
Officer Lemmons broke the window, the vehicle ‘‘was
moving a lot forward and backwards, which looked
very . . . menacing and aggressive . . . .’’14 Officer
Lemmons had intended to reach through the broken
window and grab the defendant,15 but the defendant
quickly reversed the silver car, and Officer Lemmons
had to evade its path, stumbling as he did so.
Officer Miserendino testified that, after seeing those
events transpire, he thought that Officer Lemmons had
been hit by the silver car and that he was in fear for
both of their lives. Specifically, Officer Miserendino
testified that he felt that the defendant was using the
silver car as a weapon against himself and Officer Lem-
mons. Officer Miserendino fired a single shot from his
service weapon at the silver car, with the intent to
disable it. The shot, however, did not disable the vehicle,
and the defendant proceeded to drive around the front
of Officer Miserendino’s cruiser and up Seahill Road.16
After checking on Officer Lemmons, Officer Miseren-
dino returned to his cruiser and attempted to catch up
to the silver car. Officer Lemmons followed in pursuit.
The defendant drove about one-quarter of a mile
down the road before the silver car broke down on the
side of the road. The defendant then exited the silver
car and ran into woods nearby. In order to locate the
defendant, the officers requested K-9 services from the
North Haven Police Department. Thereafter, with the
assistance of Canine Officer Zeus and Officer James
Brennan, law enforcement apprehended the defendant
and he was taken into custody.
Detective Sergeant Sean Anderson responded to the
location where the defendant had abandoned the silver
car. Later that week, Detective Sergeant Anderson
applied for and subsequently obtained a search and
seizure warrant to inspect the inside of the silver car.
Inside the vehicle, Detective Sergeant Anderson found
a debit card with the name Maria Liguori, hotel room
key cards, several sets of curtains, a pocket radar, a
pink iPod, and a black leather case. A Rolex watch was
also recovered.
Thereafter, Hills discovered that several items were
missing from his wife’s car and reported that these items
had been in the vehicle the previous day. Specifically,
he discovered that a pocket radar, a watch, and a black
leather case were missing. Hills reported the missing
items to the North Branford police. Similarly, Maria
Gallicchio (formerly Maria Liguori), also a resident of
North Branford, discovered that items were missing
from her car. Specifically, she discovered that an iPod,
her debit card, a hotel room key card, hotel vouchers,
and several sets of curtains were missing and reported
that all of these items had been in her car the day
before. Gallicchio reported the missing items to the
North Branford police. At trial, both Gallicchio and Hills
identified the items seized from the silver car as the
missing items that had been taken from their vehicles.
The defendant was charged with five counts by way
of an amended long form information dated March 27,
2018. In the first and second counts, the defendant was
charged with attempt to commit assault in the first
degree in violation of §§ 53a-49 (a) (2) and 53a-59 (a)
(1). Count one was related to his reversing the silver
car toward Officer Lemmons and count two was related
to his accelerating toward Officer Miserendino. In the
third and fourth counts, the defendant was charged
with attempt to commit assault of a peace officer in
violation of §§ 53a-49 (a) (2) and 53a-167c (a) (1), relat-
ing to Officers Lemmons and Miserendino, respectively.
In the fifth count, the defendant was charged with
engaging an officer in pursuit in violation of General
Statutes § 14-223 (b).
A trial was held on April 2 and 3, 2018. The state
presented the testimony of Hills, Officer Miserendino,
Officer Ron Ferrucci, Gallicchio, Officer Lemmons,
Detective Sergeant Anderson, Officer Brennan, Officer
Pasquale Marino, Officer Joseph Venditto, and Officer
Michael Doherty.17 The defendant testified in his own
defense. After the prosecution rested, the defendant
moved for judgment of acquittal, which the trial court
denied.18
The jury found the defendant not guilty of count one,
attempt to commit assault in the first degree pertaining
to his actions against Officer Lemmons, but it found
the defendant guilty of counts two through five. There-
after, the court sentenced the defendant to twenty years
of incarceration, execution suspended after fifteen
years, followed by five years of probation, for count
two, five years of incarceration for counts three and
four, and one year of incarceration for count five, to
run concurrently. This appeal followed.
I
The defendant’s first claim on appeal is that there
was insufficient evidence to support his conviction of
attempt to commit assault in the first degree pertaining
to his actions against Officer Miserendino. Specifically,
the defendant asserts that the evidence was insufficient
to establish beyond a reasonable doubt that he pos-
sessed the necessary intent to be convicted of this
crime. For the reasons that follow, the defendant cannot
prevail on his sufficiency of the evidence claim.
Before addressing the defendant’s first claim on
appeal, we set forth the well established principles that
guide our review. ‘‘[A] defendant who asserts an insuffi-
ciency of the evidence claim bears an arduous burden.
. . . [F]or the purposes of sufficiency review . . . we
review the sufficiency of the evidence as the case was
tried . . . . [A] claim of insufficiency of the evidence
must be tested by reviewing no less than, and no more
than, the evidence introduced at trial. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict.’’ (Internal quotation
marks omitted.) State v. Luciano, 204 Conn. App. 388,
396, A.3d , cert. denied, 337 Conn. 903, A.3d
(2021).
‘‘In evaluating a claim of evidentiary insufficiency,
we review the evidence and construe it as favorably as
possible with a view toward sustaining the conviction,
and then . . . determine whether, in light of the evi-
dence, the trier of fact could reasonably have reached
the conclusion it did reach. . . . A trier of fact is per-
mitted to make reasonable conclusions by draw[ing]
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . [These inferences, however] cannot be
based on possibilities, surmise or conjecture. . . .
‘‘We note that the [trier of fact] must find every ele-
ment proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . . Moreover, it does not diminish the proba-
tive force of the evidence that it consists, in whole or
in part, of evidence that is circumstantial rather than
direct. . . . It is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Josephs, 328 Conn. 21, 35–36, 176 A.3d 542 (2018).
In order to sustain the defendant’s conviction, the
state must have presented evidence from which the
jury reasonably could have found beyond a reasonable
doubt that the defendant was guilty of attempt to com-
mit assault in the first degree against Officer Miseren-
dino. Pursuant to § 53a-49 (a), ‘‘[a] person is guilty of
an attempt to commit a crime if, acting with the kind
of mental state required for commission of the crime,
he . . . (2) intentionally does or omits to do anything
which, under the circumstances as he believes them to
be, is an act or omission constituting a substantial step
in a course of conduct planned to culminate in his
commission of the crime.’’ Further, ‘‘[a] person is guilty
of assault in the first degree when: (1) With intent to
cause serious physical injury to another person, he
causes such injury to such person or to a third person
by means of a deadly weapon or a dangerous instrument
. . . .’’ General Statutes § 53a-59 (a). ‘‘Accordingly, [a]
conviction of attempt to commit assault in the first
degree, in violation of §§ 53a-49 (a) (2) and 53a-59 (a)
(1), requires proof of intentional conduct constituting a
substantial step toward intentionally causing the victim
serious physical injury by means of a dangerous instru-
ment.’’ (Internal quotation marks omitted.) State v.
Andrews, 114 Conn. App. 738, 744, 971 A.2d 63, cert.
denied, 293 Conn. 901, 975 A.2d 1277 (2009).
General Statutes § 53a-3 (11) provides in relevant part
that ‘‘[a] person acts ‘intentionally’ with respect to a
result or to conduct described by a statute defining an
offense when his conscious objective is to cause such
result or to engage in such conduct . . . .’’ ‘‘Intent may
be, and usually is, inferred from [a] defendant’s verbal
or physical conduct [as well as] the surrounding circum-
stances. . . . Nonetheless, [t]here is no distinction
between circumstantial and direct evidence so far as
probative force is concerned. . . . Moreover, [i]t is not
one fact, but the cumulative impact of a multitude of
facts which establishes guilt in a case involving substan-
tial circumstantial evidence. . . . Finally, we under-
score that intent [can] be formed instantaneously and
[does] not require any specific period of time for
thought or premeditation for its formation. . . . Intent
is a question of fact, the determination of which should
stand unless the conclusion drawn by the trier is an
unreasonable one.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Carter, 317 Conn. 845,
856–57, 120 A.3d 1229 (2015).
Additionally, ‘‘[t]he [jury is] not bound to accept as
true the defendant’s claim of lack of intent or his expla-
nation of why he lacked intent. . . . Intent may be,
and usually is, inferred from the defendant’s verbal or
physical conduct. . . . Intent may also be inferred
from the surrounding circumstances. . . . The use of
inferences based on circumstantial evidence is neces-
sary because direct evidence of the accused’s state of
mind is rarely available. . . . Intent may be gleaned
from circumstantial evidence such as the type of
weapon used, [and] the manner in which it was used
. . . . Furthermore, it is a permissible, albeit not a nec-
essary or mandatory, inference that a defendant
intended the natural consequences of his voluntary con-
duct.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Andrews, supra, 114 Conn. App. 744–45.
Further ‘‘[t]he existence of an intent to escape does not
necessarily negate the existence of an intent to cause
serious physical injury when making the escape.’’ Id.,
746.
On appeal, the defendant argues that ‘‘[n]o evidence
was presented to prove beyond a reasonable doubt that
the defendant acted with the specific intent to cause
serious physical injury to Officer Miserendino’’ and that,
therefore, ‘‘the evidence was insufficient to sustain a
conviction of [attempt to commit] assault in the first
degree . . . .’’ The defendant asserts that ‘‘the evidence
adduced at trial demonstrated that [he] did not intend
to cause serious physical injury, but rather acted with
the intent to flee from the police.’’ We are not persuaded.
In support of his argument that his only intent was
to evade the officers, the defendant relies on Officer
Miserendino’s testimony that the defendant’s actions
were ‘‘reckless’’ and ‘‘evasive’’ and argues that this testi-
mony is dispositive on the question of intent. The rele-
vant testimony comes from the following colloquy
between Officer Miserendino and defense counsel:
‘‘[Defense Counsel]: Why did you think your life was
in danger?
‘‘[Officer Miserendino]: Well, the reckless operation
of a vehicle; it had already struck a police cruiser, it
had reversed and almost ran over Officer Lemmons,
we’re yelling commands to continuously stop, the car
is not stopping, the vehicle again, for the second time,
almost strikes Officer Lemmons. The vehicle was being
used as a weapon. . . .
‘‘[Defense Counsel]: You just said that the vehicle
was operating recklessly?
‘‘[Officer Miserendino]: Yes.
‘‘[Defense Counsel]: And it was going—recklessly
was in the action of reversing and then moving forward?
‘‘[Officer Miserendino]: I’m not sure what you’re ask-
ing.
‘‘[Defense Counsel]: Well, I mean, your testimony is
that he strikes your vehicle, doesn’t stop—or, I mean,
doesn’t continue going and just reverses, goes forward,
reverses again and then eventually he gets around your
cruiser?
‘‘[Officer Miserendino]: Yeah.
‘‘[Defense Counsel]: Okay. So, that action there,
reversing and going forward that—that was reckless?
‘‘[Officer Miserendino]: Striking a police vehicle that’s
trying to stop you, almost running over an officer, yes.’’
On the basis of this testimony, the defendant argues
that the officer ‘‘did not believe the defendant’s actions
were to intentionally cause serious physical injury, but
rather, to escape,’’ and, therefore, the evidence is insuf-
ficient to support the conviction. The defendant relies
on Andrews, in which this court found sufficient evi-
dence of intent to support a conviction of attempt to
commit assault in the first degree where a defendant
drove toward an officer while trying to flee and the
officer testified that he ‘‘believed that the defendant
deliberately was trying to run him over.’’ State v.
Andrews, supra, 114 Conn. App. 744, 746. The defendant
contends that, because, unlike in Andrews, Officer Mis-
erendino ‘‘did not testify that he believed that the defen-
dant was ‘deliberately’ trying to run him over,’’ there
is insufficient evidence to support his conviction. The
defendant neglects to mention Officer Miserendino’s
testimony that he believed the defendant was using his
car as a weapon to injure himself and Officer Lemmons.
Thus, the defendant’s argument is unavailing.
In the present case, there is ample evidence from
which the jury reasonably could have concluded beyond
a reasonable doubt that the defendant had the intent to
inflict serious physical injury on Officer Miserendino.19
First, the jury reasonably could have found that the
defendant was aware of Officer Miserendino’s presence
and location. The defendant’s actions at issue occurred
after the defendant had collided with Officer Miseren-
dino’s cruiser, and, therefore, there was evidence to
reasonably support a finding that the defendant knew
the location of the cruiser. Further, Officer Miserendino
testified that, moments earlier, he was close enough to
the defendant to observe his facial expression and later
identify him. Officer Miserendino did not move away
from the cruiser. Additionally, both officers had their
police lights activated, illuminating the scene, and both
officers were shouting commands at the defendant
throughout the incident. The jury reasonably could find
that the defendant knew where Officer Miserendino
was and that the defendant drove the silver car directly
toward Officer Miserendino.
Second, the jury reasonably could have found that
the defendant intended to hit Officer Miserendino with
the silver car. Officer Lemmons testified that, earlier in
the pursuit, the defendant attempted to drive around
Officer Miserendino’s cruiser, but he failed and collided
with the passenger side rear of the cruiser. Thereafter,
Officer Miserendino exited his cruiser and began shout-
ing orders to the defendant from the driver’s side rear of
his cruiser. Officer Lemmons testified that ‘‘it appeared
that [the defendant] was trying to go around [Officer
Miserendino’s cruiser] again’’ by proceeding along the
same route that previously resulted in a collision with
the passenger side rear of the cruiser. During this
attempt, however, Officer Miserendino was now outside
his cruiser and standing between his cruiser and the
silver car driven by the defendant, and he had to evade
the silver car in order to avoid being hit. Accordingly,
the jury reasonably could have found that the defendant
intended to hit Officer Miserendino.20
Third, the jury reasonably could have found that the
defendant had a motive to assault Officer Miserendino.
The state presented evidence to support a finding that
the defendant had a motive to evade the officers by
any means. Specifically, the state presented evidence
that the silver car had several stolen items in it that
evening, many of which were plainly visible.21 The jury
reasonably could have found, consistent with the state’s
closing arguments, that the defendant had a motive to
evade the police by whatever means necessary, includ-
ing by assaulting Officer Miserendino.
Fourth, the jury reasonably could have found that
the defendant did not mistakenly accelerate toward
Officer Miserendino. The state presented evidence that
tends to demonstrate the defendant’s lack of mistake in
regard to his acceleration toward Officer Miserendino.
Specifically, the state presented evidence of a subse-
quent encounter between the defendant and several
police officers on September 7, 2015. See footnote 17
of this opinion. This evidence provides a pattern of
behavior that reasonably could support a conclusion
by the jury that the defendant did not accelerate toward
Officer Miserendino due to a mistake. See, e.g., Conn.
Code Evid. § 4-5 (c) (‘‘[e]vidence of other crimes,
wrongs or acts . . . is admissible . . . to prove intent,
identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system
of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony’’); State v.
Collins, 299 Conn. 567, 583, 10 A.3d 1005 (same), cert.
denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193(2011).
In the present case, the jury reasonably could have
found that the defendant’s intent, as an element of the
crime of attempt to commit assault in the first degree,
was proven beyond a reasonable doubt by the cumula-
tive impact of the evidence and the rational inferences
permissibly drawn therefrom. Accordingly, the defen-
dant cannot prevail on this claim.22
II
The defendant’s second claim on appeal is that the
trial court erred in accepting the jury’s verdict for the
counts of attempt to commit assault of a peace officer
because that crime is not legally cognizable. We con-
clude that the defendant’s claim fails under the third
prong of State v. Golding, 213 Conn. 233, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
780–81, 120 A.3d 1188 (2015). In the alternative, the
defendant claims that the evidence was insufficient to
support his conviction of two counts of attempt to com-
mit assault of a peace officer.23 For the reasons set forth
in part I of this opinion, the defendant’s challenge to
his conviction of the count pertaining to his actions
against Officer Miserendino fails. See footnote 22 of
this opinion. With respect to the defendant’s challenge
to his conviction of the count pertaining to his actions
against Officer Lemmons, we do not reach the merits
of the claim.
A
We first turn to the claim that the crime of attempt
to commit assault of a peace officer is not legally cogni-
zable. The defendant seeks review of this unpreserved
claim under State v. Golding, supra, 213 Conn. 233, as
modified by In re Yasiel R., supra, 317 Conn. 780–81.
We conclude that the defendant’s claim fails under the
third prong of Golding because he has not established
a constitutional violation.
The following procedural history is relevant to our
resolution of this claim. This appeal was fully briefed
on August 31, 2020. On August 20, 2020, the defendant
filed a motion to transfer the appeal to our Supreme
Court. In the motion to transfer, the defendant argued
that transfer was warranted in order to resolve a tension
between a Supreme Court case and an Appellate Court
case. Specifically, the defendant asserted that State v.
Jones, 96 Conn. App. 634, 902 A.2d 17, cert. denied, 280
Conn. 919, 908 A.2d 544 (2006), is inconsistent with
Supreme Court precedent, namely, State v. Almeda,
189 Conn. 303, 455 A.2d 1326 (1983), and should be
overruled. Although the defendant acknowledged that
his claim is controlled by Jones, because that case can
be overruled only by the Supreme Court or the Appellate
Court sitting en banc, he requested transfer, claiming
that Jones was incorrectly decided and should be over-
ruled. Our Supreme Court denied the motion.
On December 4, 2020, the defendant filed a motion
with this court requesting en banc consideration. Again,
the defendant argued that Jones was incorrectly
decided in light of Almeda, and should be overruled.
This court denied the motion.
First, we must address whether this claim is review-
able. In his principal appellate brief, the defendant, for
the first time, raises the question of whether the crime
of attempt to commit assault of a peace officer is a
legally cognizable crime. The defendant acknowledges
that this claim was not raised at the trial level and,
accordingly, is unpreserved. The defendant argues,
however, that this claim is reviewable under the princi-
ples set forth in State v. Golding, supra, 213 Conn. 233.
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 viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) Id., 239–40; see also In re Yasiel R., supra,
317 Conn. 780–81 (modifying third prong of Golding).
‘‘[T]he third prong of Golding does not require that
there be existing Connecticut precedent already recog-
nizing a constitutional right. Instead, a party satisfies
the third prong of Golding if he or she makes a showing
sufficient to establish a constitutional violation. Requir-
ing anything more would defeat the purpose of Golding,
which, of course, is to permit a party to prevail on an
unpreserved constitutional claim when, on appeal, the
party can demonstrate a harmful constitutional depriva-
tion.’’ In re Yasiel R., supra, 317 Conn. 780–81. ‘‘The
first two [prongs of Golding] involve a determination
of whether the claim is reviewable; the second two . . .
involve a determination of whether the defendant may
prevail.’’ (Internal quotation marks omitted.) State v.
LaFontaine, 128 Conn. App. 546, 550 n.3, 16 A.3d
1281 (2011).
Assuming, without deciding, that the defendant’s
claim is reviewable under the first two prongs of Gold-
ing, it fails the under the third prong. In State v. Jones,
supra, 96 Conn. App. 640, this court determined that
the crime of attempt to commit assault of a peace officer
is legally cognizable. Because the defendant’s argument
with respect to prong three is predicated on his claim
that attempt to commit assault of a peace officer is not
a legally cognizable crime, and because this court in
Jones previously determined that the crime is legally
cognizable, there cannot be a clear constitutional viola-
tion for the purposes of Golding. In light of Jones,
the defendant’s claim fails under the third prong of
Golding.24
B
The defendant claims, alternatively, that there was
insufficient evidence of the requisite intent to support
his conviction of attempt to commit assault of a peace
officer pertaining to his actions against Officer Lem-
mons. We conclude that the defendant has abandoned
this claim.
‘‘It is well settled that claims on appeal must be ade-
quately briefed . . . . Claims that are inadequately
briefed generally are considered abandoned.’’ (Cita-
tions omitted.) Grimm v. Grimm, 276 Conn. 377, 393,
886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.
Ct. 2296, 164 L. Ed. 2d 815 (2006). ‘‘Analysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly.’’ (Internal quotation marks omitted.) Ward v.
Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004). ‘‘The
mere recital of . . . claims in a petition, without sup-
porting oral or written argument, does not adequately
place those claims before the court for its consider-
ation.’’ Solek v. Commissioner of Correction, 107 Conn.
App. 473, 480–81, 946 A.2d 239, cert. denied, 289 Conn.
902, 957 A.2d 873 (2008).
The defendant’s briefing is devoid of any analysis in
support of his challenge to his conviction of attempt
to commit assault of a peace officer pertaining to his
actions against Officer Lemmons. In support of his
claim, the defendant merely incorporated his arguments
previously set forth with respect to his challenge to his
conviction of attempt to commit assault in the first
degree.25 Those arguments, however, relate only to the
defendant’s actions against Officer Miserendino.
Accordingly, the defendant provides no supporting fac-
tual argument or legal analysis that challenges his con-
viction pertaining to his actions against Officer Lem-
mons. For these reasons, we conclude that the
defendant’s claim is abandoned. We, therefore, decline
to review it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was convicted of one count of engaging an officer
in pursuit in violation of General Statutes § 14-223 (b). The defendant does
not challenge his conviction of this offense on appeal.
The defendant also was charged with one count of attempt to commit
assault in the first degree pertaining to his actions against Officer Corey
Lemmons of the North Branford Police Department. The jury found him
not guilty of that charge.
2
The defendant ultimately was detained in the early hours of November
9, 2014.
3
We note that Anthony Tuozzola’s name is spelled inconsistently through-
out the record. For purposes of clarity, we refer to him as Tuozzola.
4
By the time the defendant and Tuozzola drove to Waterbury, the defen-
dant had various intoxicating drugs in his system. At the start of his day,
the defendant was provided methadone through a local program. In addition,
the defendant took eight milligrams of prescribed Xanax. Although the
defendant testified that he was ‘‘messed up that night,’’ he also testified that
he would generally ingest methadone, Xanax, and alcohol every day. He
additionally testified that, in the hours leading up to his arrest, he had no
issues driving to Waterbury, from Waterbury to New Haven, or from New
Haven to North Branford.
5
The defendant testified that they drove to North Branford to visit
their friend.
6
According to the defendant, he and Tuozzola stopped to urinate. The
defendant testified that, after relieving themselves, he and Tuozzola returned
to the car and drove away, only to find themselves at a dead end where
they encountered two police cruisers.
7
At trial, Hills was not asked to identify the person he saw in his driveway
in the early morning hours of November 9, 2014; however, he did identify
the silver car that later drove by his house as the vehicle driven by the
person he saw in his driveway, and he stated that the person had entered
the silver car via the driver’s side door. Officers Christopher Miserendino
and Corey Lemmons identified the defendant as the person driving the silver
car that night. Further, the defendant testified that he was driving the silver
car at all times that night.
8
Although Hills’ address is 410 Seahill Road, his driveway opens onto
Wilford Road, which, at that location, runs perpendicular to Seahill Road.
9
Officer Miserendino testified that Officer Lemmons also had his siren
on; however, Officer Lemmons testified that he did not turn his siren on
until sometime later. Further, the defendant testified that the first car (Officer
Lemmons’ cruiser) did not have its lights on.
10
Additionally, given the narrowness of the road, Officer Lemmons was
having trouble turning around and determined that proceeding on foot would
be better.
11
Officer Lemmons testified that he did not think that the driver was
aware of his presence behind the silver car.
12
Officer Lemmons testified that the defendant seemed again to attempt
to maneuver around Officer Miserendino’s cruiser.
13
Officer Miserendino testified that the car ‘‘came forward towards me
. . . [and] reversed again and kind of, for a short amount of time, stayed
stationary.’’ Officer Lemmons testified that the silver car was ‘‘moving a
little bit back and forth, back and forth . . . .’’
14
Officer Lemmons testified that, in retrospect, he thought the vehicle
was moving that way because the defendant was trying not to stall the
vehicle. The silver car was a standard transmission.
15
Officer Lemmons testified that, after he broke the window of the silver
car, he first observed the driver, who he later identified as the defendant.
16
The defendant’s account of the interaction is quite different. He testified
that when he initially went to drive around Officer Miserendino’s cruiser,
the officer hit the defendant’s car with the cruiser and that, despite the
collision, the defendant was able to drive around the cruiser and up Seahill
Road. He testified that he ‘‘never reversed’’ the silver car and that he did
not remember the window breaking, but he did remember hearing ‘‘gun
shots [and] glass breaking . . . .’’
17
Officers Venditto and Doherty testified about an incident that occurred
in Hamden on September 7, 2015, about one year after the incident at issue
in the present case. At around six o’clock that evening, Officers Venditto
and Doherty received a report of an erratic vehicle and then observed a
vehicle that matched the description. Officer Venditto attempted a traffic
stop and initially was successful; however, as soon as he began to exit his
cruiser, the vehicle sped off. Officer Venditto, along with Officer Doherty
who had arrived at the scene, then pursued the driver for some time. Near
the end of the pursuit, the driver hit Officer Doherty’s cruiser, disabling it.
Assuming that the driver’s vehicle was also disabled, Officer Doherty exited
his cruiser. The vehicle, however, drove away before turning around and
driving directly at Officer Doherty. Officer Doherty testified that he ‘‘believed
[the driver] was traveling at [him] personally.’’ Fearing for his safety, Officer
Doherty fired three shots at the vehicle, which swerved away from the
officer at the last moment. The driver eventually abandoned the vehicle and
fled. He was apprehended and taken into custody shortly thereafter. Both
Officer Venditto and Officer Doherty identified the defendant as the driver
of the car involved in the September 7, 2015 incident.
18
As to each count alleging criminal attempt, the defendant argued that,
because of his intoxication, he could not form the specific intent required
for the crime.
19
During its closing argument, the state argued that the substantial step
in relation to the defendant’s attempt to injure Officer Miserendino was the
second time that the defendant accelerated toward the officer—when Officer
Miserendino was standing outside of his cruiser after the silver car had
collided with it. Thus, our discussion of intent focuses on this specific
moment.
20
In its brief, the state addressed Officer Lemmons’ testimony that the
defendant just seemed to be trying to get around Officer Miserendino’s
cruiser. The state offered several plausible ways the jury could have viewed
this evidence: the jury could have determined that this opinion was due to
Officer Lemmons’ different perspective of the scene, it could have deter-
mined that the defendant formed the necessary intent after his initial attempt
to get around the vehicle, or it could have decided to disregard Officer
Lemmons’ testimony on the fact. Further, the state noted the testimony
regarding the September 7, 2015 incident; see footnote 17 of this opinion;
bolstered the conclusion that the defendant had the requisite intent.
21
Detective Sergeant Anderson, who searched the silver car, found the
stolen items in the vehicle’s center console, on the backseat, and on the
floor of the backseat.
22
The defendant also claims, in the alternative to his claim that attempt
to commit assault of a peace officer is not a legally cognizable crime,
that there was insufficient evidence of the requisite intent to support his
conviction of attempt to commit assault of a peace officer as to his actions
against Officer Miserendino. See part II of this opinion. In State v. Jones,
96 Conn. App. 634, 639, 902 A.2d 17, cert. denied, 280 Conn. 919, 908 A.2d
544 (2006), this court determined that ‘‘when coupled with the attempt
statute, the intent required for the crime of attempted assault of a peace
officer is the intent to prevent the officer from performing his duties.’’ In
part I of this opinion, we have concluded that, on the basis of the evidence
presented and the rational inferences drawn therefrom, the jury reasonably
could have found that the defendant intended to cause serious physical
injury to Officer Miserendino. Because harming an officer would necessarily
result in preventing that officer from performing his/her duties, we also
conclude that this same evidence that is sufficient to support a finding
that the defendant intended to harm Officer Miserendino reasonably could
support a finding that the defendant acted with the intent to prevent Officer
Miserendino from performing his duties. Accordingly, the defendant’s claim
that there is insufficient evidence of the requisite intent to support his
conviction for attempt to commit assault of a peace officer as to his actions
against Officer Miserendino fails.
23
As previously mentioned in this opinion, the defendant was convicted
of one count of attempt to commit assault of a peace officer pertaining to
his actions against Officer Lemmons and one count pertaining to his actions
against Officer Miserendino.
24
Because this court in Jones determined that the crime at issue is legally
cognizable; State v. Jones, supra, 96 Conn. App. 640; we need not consider
whether a nonlegally cognizable crime satisfies Golding’s requirement of a
clear constitutional violation. In his principal appellate brief, the defendant
urges us to overrule Jones, arguing that it was decided incorrectly. This
panel does not reach the merits of the defendant’s argument, as ‘‘[i]t is this
court’s policy that we cannot overrule a decision made by another panel of
this court absent en banc consideration.’’ (Internal quotation marks omitted.)
State v. Bischoff, 189 Conn. App. 119, 123, 206 A.3d 253 (2019), aff’d,
Conn. , A.3d (2021). Because we are not reviewing the present case
en banc, we are bound by our decision in Jones.
25
Specifically, the defendant argues that because there was insufficient
evidence to prove his intent to cause serious physical injury to Officer
Miserendino, ‘‘it logically follows that [he] necessarily was convicted of
[attempt to commit] assault of police officers based on a theory of reckless
or negligent actions . . . .’’ The defendant further maintains that, in light
of his insistence that the jury must have convicted him of attempt to commit
assault in the first degree on the basis of a theory of reckless or negligent
actions, rather than on his specific intent to cause serious physical injury,
‘‘and because a defendant cannot attempt to commit an offense that requires
an unintended result, the defendant’s [conviction] of attempt to commit
assault of a [peace] officer must be set aside.’’