DocketNumber: No. CR99-0099216
Citation Numbers: 2001 Conn. Super. Ct. 4019
Judges: AGATI, JUDGE.
Filed Date: 3/22/2001
Status: Non-Precedential
Modified Date: 4/17/2021
1) There is insufficiency of evidence or cause to justify the bringing or continuing of such information or placing of the defendant on trial;
2) The law defining the offense charged is unconstitutional as applied to this defendant or otherwise invalid; and
3) The prosecuting authority is equitably estopped from prosecuting the defendant.
The defendant was arrested pursuant to an arrest warrant for an incident that took place on January 22, 1999. The warrant prepared by the Connecticut state police charged Robinson with Unlawful Discharge of a Firearm in violation of General Statutes §
Subsequent to Robinson's arrest, the Connecticut state police ran a record check of Robinson. The record check revealed that Robinson had been convicted previously (in 1980) of Assault 2nd Degree pursuant to General Statutes §
Robinson's motion to dismiss pursuant to Practice Book §
Practice Book §
CT Page 4021
The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:
(1) Defects in the institution of the prosecution including any grand jury proceedings;
(2) Defects in the information including failure to charge an offense;
(3) Statute of limitations;
(4) Absence of jurisdiction of the court over the defendant or the subject matter;
(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial;
(6) Previous prosecution barring the present prosecution;
(7) Claim that the defendant has been denied a speedy trial;
(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid; or
(9) Any other grounds.
The court notes that based on Robinson's motion to dismiss, he has relied on subdivisions (5), (8) and (9) as grounds to dismiss this information.
The court has reviewed Robinson's memorandum of law in support of his motion to dismiss, the state's objection and response thereto, Robinson's reply to the state's objection, as well as, the evidence and testimony provided at the hearing on Robinson's motion.
The court finds that as to the first ground of Robinson's motion, which would be pursuant to subsection (5) of § 41-8, Robinson failed to brief the issue or provide any evidence in support. In addition, Practice Book §
Robinson's third ground to for dismissal, that the prosecuting authority is equitably estopped from prosecuting the defendant, also fails. This ground was briefed by Robinson in his reply brief, however, this ground falls under § 41-8 (9). Again, as found previously by this court, Robinson is restricted from a moving to dismiss on this ground pursuant to § 41-9 as cited previously. Therefore, Robinson's motion to dismiss on this ground is also denied.
Robinson also moves to dismiss pursuant to § 41-8 (8). Robinson is permitted to pursue this ground by way of a motion to dismiss the information even if the arrest was made pursuant to a warrant.
Robinson's claim is that §
Section
Criminal possession of a firearm or electronic defense weapon: Class D felony
(a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and (1) has been convicted of a capital felony, a class A felony, except a conviction under section
53a-196a , a class B felony, except a conviction under section53a-86 ,53a-122 or53a-196b , a class C felony, except a conviction under section53a-87 ,53a-152 or53a-153 , or a class D felony under sections53a-60 to53a-60c , inclusive,53a-72a ,53a-72b ,53a-95 ,53a-103 ,53a-103a ,53a-114 ,53a-136 or53a-216 , or (2) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section46b-120 . For the purposes of this section, "convicted" means having a judgment of conviction entered by a court of competent jurisdiction.(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.
CT Page 4023 Section
Initially, the court must perform an analysis of §
Elliot v. Waterbury,
The court's review process was stated by the Connecticut Supreme Court in Rivera v. Double A Transportation, Inc.,
[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .
(Brackets in original; internal quotation marks omitted.)
Robinson argues that when being convicted of Assault in the 2nd
Degree in 1980, §
In reviewing the legislative history of
Yes, thank you, Madam President. The bill makes a Class "D" felony to possess any kind of firearm after having been convicted of certain enumerated crimes. Currently that is the condition for certain weapons, pistol, revolver, electronic defense weapons, stun gun, things of that nature. This would just make it CT Page 4024 clear that any firearm, anyone who has already been convicted of these particular crimes is then arrested and convicted of a subsequent crime using any firearm would be subjected to a Class "D" felony.
34 S. Proc., Pt. 6, 1991 Sess., p. 2191, remarks of Senator Anthony V. Avallone.
"The purpose of statutory construction is to give effect to the intended purpose of the legislature. . . . If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature's intent." (Citations omitted; internal quotation marks omitted.) State v.DeFrancesco.
The court, therefore, finds that the legislature's intent was clear and unambiguous, not only by the legislative history, but also from plain reading and meaning of §
This leads the court to review Robinson's due process claim. Robinson argues that the act of possessing a firearm is a passive act and therefore he was required to be given notice by the State of Connecticut that his act of possessing a firearm (emphasis added) would be in violation of §
"The party claiming a constitutional violation bears the heavy burden of proving that the challenged policy has no reasonable relationship toany legitimate state purpose." (Emphasis in original; internal quotation marks omitted.) State v. Matos,
Our Supreme Court has opined that "[i]n our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted CT Page 4025 statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.
(Brackets in original.)
On the issue of notice, the court in State v. Schriver,
In State v. Proto,
As a matter of the due process of law required by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. . . . The void for vagueness doctrine requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement Smith v. Goguen,
415 U.S. 566 ,572-73 ,94 S. Ct. 1242 ,39 L. Ed. 2d 605 (1974).
(Citations omitted; internal quotation marks omitted.)
Finally, this court relies on the seminal Connecticut case of State v.Pickering,
CT Page 4026
A long line of United States Supreme Court decisions have established a basic principle to be considered when a statute is under attack as void for vagueness. It may be described as a fair warning principle which mandates that as a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid."That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. . . .
This notion of fair warning is intended to ensure that vague laws do not become a trap for the innocent. . . . Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.
It has been recently stated that [a]ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden. Thus, a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning.
(Brackets in original; citations omitted; internal quotation marks omitted.) See State v. Pickering, supra, 59-61.
Based on the standard of review as defined, this court must now review the facts and circumstances in the present case to determine whether a person of ordinary intelligence would understand that Robinson's acts were prohibited under §
CT Page 4027
The court, as stated earlier, has already found that §
The court rejects Robinson's claim of failure to provide fair warning. The court is persuaded that Robinson received constitutionally adequate notice of the penalties he found by the plain reading of the §
Therefore, the defendant's motion to dismiss is denied.
Agati, J.