State v. Nova ( 2015 )

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STATE OF CONNECTICUT v. MARTIN NOVA
(AC 36073)
Lavine, Alvord and Mullins, Js.
Argued September 15—officially released December 15, 2015
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Richard Emanuel, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Sean P. McGuinness, assistant state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Martin Nova, appeals
from the judgment of conviction, rendered after a trial
to the court, of one count of possession of narcotics
in violation of General Statutes § 21a-279 (a) and one
count of possession of narcotics within 1500 feet of
a school in violation of § 21a-279 (d). On appeal, the
defendant claims that there was insufficient evidence
to sustain his conviction. We agree and therefore
reverse the judgment of the trial court.1
At trial, the following pertinent evidence was
adduced. Pursuant to an ongoing investigation, mem-
bers of the Danbury Police Department’s special investi-
gations division obtained a warrant to search both the
defendant and apartment unit four (apartment) of the
building at 429 Main Street in Danbury (building) for
narcotics, drug paraphernalia, and related items. The
evidence established that the defendant visited the
apartment daily, often ate there, left his children there
for babysitting, and sometimes stayed overnight if he
had been drinking. On the basis of their prior surveil-
lance, however, police believed that this was the defen-
dant’s residence.
On October 3, 2012, several Danbury police officers
conducted surveillance of the building in preparation
for execution of the warrant. Shortly after the surveil-
lance began, the defendant drove into the building’s
parking lot, exited his car, and ascended the building’s
external staircase to the second floor, where the main
entry door of the apartment was located. He entered
the apartment through the main entry door, which
opened into the kitchen. He reemerged a few moments
later. He then ascended the external staircase to a bal-
cony on the third floor of the building that adjoined the
upper of the apartment’s two levels and remained on
the balcony for approximately one minute. Then, he
descended to the building’s second floor, and disap-
peared briefly from the officers’ sight before returning
to his car.
Shortly after the defendant returned to his car, police
observed a brief meeting between the defendant and
another individual in the building’s parking lot. Specifi-
cally, the officers saw a white male drive a pickup truck
into the parking lot and park next to the defendant’s
car. The defendant opened the pickup truck’s passenger
side door, leaned in, and spoke to the driver for approxi-
mately one minute. During the meeting, police did not
observe any hand-to-hand contact or the exchange of
any item. Afterward, the pickup truck left the park-
ing lot.
Moments later, Detective Luis Ramos observed the
driver of the pickup truck, who had stopped at a red
traffic signal approximately twenty feet away, ‘‘making
a furtive movement . . . .’’ In particular, Ramos
observed the driver lean down and to the right several
times. It appeared to Ramos that the driver would snort
something, then straighten up and wipe his nose. From
his vantage point, Ramos did not see drugs or hear the
driver snorting.
Police did not conduct a motor vehicle stop of the
pickup truck after Ramos observed the driver’s furtive
movements. Instead, they detained and handcuffed the
defendant. The defendant did not resist or make any
incriminating statements when police handcuffed him
or when they subsequently escorted him into the apart-
ment to begin conducting their search.
When police entered the apartment to conduct the
search, only one of its three occupants, Lisette Espinal,
was at home. The apartment was also occupied by
Denise Espinal,2 Lisette Espinal’s sister and the defen-
dant’s sister-in-law; and Camilo Santos. A former occu-
pant, Odalis Santana, had moved out of the apartment
that morning.
The search of the apartment revealed drugs and drug
paraphernalia throughout. In the kitchen, a knotted
plastic bag containing crack cocaine and a plastic bag
containing powder cocaine were in a kitchen cabinet;
and clear plastic bags, aluminum foil, and colored tape
containing cocaine residue were in a garbage can. On
the third floor balcony, which adjoined the bedroom
Santana had occupied, officers found a clear plastic
sandwich bag containing twelve small yellow ziplock
bags in a Wal-Mart shopping bag.3 In a locked bedroom
on the apartment’s lower level, occupied by Denise
Espinal, officers found cocaine residue inside the lid
of a key box.
The search also revealed two documents that bore
the defendant’s name. One of the documents, found on
the kitchen table, was a January, 2012 earnings state-
ment from Hubbell Incorporated that listed the defen-
dant’s address as 17 Washington Avenue, Danbury. The
other document, found in the living room, was an Octo-
ber 1, 2012 Western Union money transfer receipt that
showed a transfer of $200 from the defendant to an
individual in the Dominican Republic.
The search of the defendant revealed two cell phones
but no cash or drugs. The search continued in the defen-
dant’s car, which did not contain any contraband.
On the basis of the evidence presented, at the conclu-
sion of the trial, the court made the following oral find-
ings of fact. ‘‘[O]n October 3, 2012, members of the
Danbury Police Department . . . special investiga-
tions unit were conducting surveillance at 429 Main
Street, specifically, referencing unit 4, in Danbury, Con-
necticut. The location was well known to the police,
as the defendant himself, as well as the location, specifi-
cally, were noted as targets, with regard to the particular
investigation that was being conducted. Members of
the Danbury police special investigations nit indicated
that this was an ongoing investigation, which had
involved their participation and their observation, at
this particular location, on multiple occasions. That
throughout the course of this ongoing investigation, the
defendant, who was the target of the investigation, was
seen at 429 Main Street in Danbury. That the defendant
was also seen in a particular vehicle, which was a black
Audi, which had been noted by many officers, to be at
this location . . . .
‘‘Several officers, on the day in question . . . all of
[whom] the court found to be credible witnesses, were
able to observe the defendant at different vantage
points . . . .
‘‘The defendant was seen by officers entering [the
building], walking up to . . . [and] entering [the apart-
ment]. He was then also seen up on the higher level
balcony. . . . [Police] . . . could see that he was
standing outside of that area and also could see that
he had entered the apartment itself, on the second floor.
‘‘After that . . . the defendant was seen meeting
with an individual . . . in a blue pickup truck. [W]hen
the pickup truck arrived . . . [t]he defendant was seen
to have opened the passenger door, to have had a very
brief encounter with this individual, and the individual
. . . immediately thereafter left the scene.
‘‘Officers were able to observe this individual, who
was operating the blue pickup truck in what, based on
their training . . . and experience . . . was deemed
to be suspicious activity, in that . . . [he] appeared to
be leaning down, as if snorting some substance.
‘‘Officers and the evidence . . . indicated that, in
fact, cocaine is a substance that can be ingested, by
way of snorting. And, that the behavior that was
observed . . . appeared, in the officers’ opinion, to be
consistent with that of snorting.
‘‘Officers made a decision, at that point, not to pursue
the pickup, but to pursue . . . the target of their inves-
tigation and, therefore, entered [the apartment] and
detained the defendant.
‘‘At that time . . . in various portions of the home
were found a white substance, both a rock and powder
form, which later proved to test positive for cocaine.
‘‘There were also other items and paraphernalia, such
as glassine bags and tinfoil that had powdered residue—
and that residue as well tested positive for cocaine—
and were consistent with the idea of packaging the
product. . . . [T]he items were then sent to the state
lab and were tested and proved positive for cocaine.’’
After making these findings, the court explained that
this was a case involving the constructive possession
of illegal narcotics by the defendant, given that the
narcotics were not found on his person and that he was
not in exclusive possession of the apartment. The court
explained further that in a case of nonexclusive posses-
sion, the court may not infer that the defendant knew
of the presence of narcotics and had control over them
unless there are other incriminating statements or cir-
cumstances to buttress such an inference. The court
then ruled on the two counts in the information.
With respect to count one, possession of narcotics,
the court concluded that the state had proven the defen-
dant’s constructive possession of the narcotics found
in the apartment. More specifically, the court concluded
that the following were incriminating circumstances
that supported an inference that the defendant knew
of the presence of cocaine in the apartment and that
he exercised dominion and control over the cocaine:
(1) ‘‘the defendant himself, as well as the location . . .
were noted as targets, with regard to the particular
investigation that was being conducted’’; (2) police fre-
quently had seen the defendant and his vehicle at the
apartment and believed it was his residence; (3) police
saw him on the balcony in close proximity to the para-
phernalia, the small ziplock bags, and he had no reason
to be on the third floor level, ‘‘presumably but for the
fact that he was there seeking out some product that
related to the ziplock bags’’; (4) he walked through the
kitchen, an area with which he was familiar on account
of his daily presence at the apartment; (5) police saw
him meeting with the driver of the pickup truck, who
subsequently appeared to snort some substance, consis-
tent with how cocaine may be ingested; and (6) Denise
Espinal’s testimony regarding his access to the apart-
ment—namely, her testimony that he visited the apart-
ment primarily to see his brother, who at the time was
living in the Dominican Republic—lacked credibility.
With respect to count two, possession of narcotics
within 1500 feet of a school, the parties stipulated that
the building was within 1500 feet of a school and that
the defendant was not a student at the school. Accord-
ingly, the court concluded that the state also had proven
count two beyond a reasonable doubt.
Thereafter, the defendant pleaded guilty to a part
B information charging him with being a subsequent
offender and received a total effective sentence of ten
years imprisonment, execution suspended after six
years, and five years of probation.4 This appeal
followed.
The defendant claims that there was insufficient evi-
dence to sustain his conviction because the state failed
to prove beyond a reasonable doubt that he construc-
tively possessed the drugs found in the common areas
of the apartment.5 The state counters that the evidence
and reasonable inferences drawn therefrom establish
incriminating circumstances that buttress an inference
that the defendant knew of the presence and character
of the cocaine and paraphernalia in the apartment and
exercised dominion and control over them. Specifically,
the state contends that the following supported an infer-
ence that he exercised dominion and control over the
drugs found in the apartment’s common areas: the
defendant’s presence on the balcony and in the kitchen;
his unfettered access to the apartment; and the circum-
stances surrounding his meeting with the pickup truck
driver, from which it was reasonable to infer that a
drug deal had occurred because (1) the defendant was
seen in the apartment just before the meeting and (2)
the driver appeared to be snorting cocaine afterward.
We agree with the defendant.6
We first set forth the standard of review. ‘‘In reviewing
the sufficiency of the evidence to support a criminal
conviction we apply a two-part test. First, we construe
the evidence in the light most favorable to sustaining
the [finding of guilt]. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . In evaluating evidence, the [finder] of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
‘‘While . . . every element [must be] proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, each of the basic and inferred
facts underlying those conclusions need not be proved
beyond a reasonable doubt. . . . If it is reasonable and
logical for the [trier of fact] to conclude that a basic
fact or an inferred fact is true, the [trier of fact] is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) State v. Slaughter, 151 Conn. App.
340, 345, 95 A.3d 1160, cert. denied, 314 Conn. 916, 100
A.3d 405 (2014).
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [fact finder’s] verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Crespo, 317 Conn. 1, 17, 115
A.3d 447 (2015).
The following principles are pertinent to the defen-
dant’s particular claim on appeal. ‘‘In order to prove
that a defendant is guilty of possession of narcotics
. . . the state must prove beyond a reasonable doubt
that the defendant had either actual or constructive
possession of a narcotic substance. . . . Actual pos-
session requires the defendant to have had direct physi-
cal contact with the narcotics. . . . Constructive
possession, on the other hand, is possession without
direct physical contact. . . . To prove either actual or
constructive possession of a narcotic substance, the
state must establish beyond a reasonable doubt that
the accused knew of the character of the drug and
its presence, and exercised dominion and control over
it. . . .
‘‘Where . . . the [narcotic substance] was not found
on the defendant’s person, the state must proceed on
the theory of constructive possession . . . . One fac-
tor that may be considered in determining whether a
defendant is in constructive possession of narcotics is
whether he is in possession of the premises where the
narcotics are found. . . . Where the defendant is not
in exclusive possession of the premises where the nar-
cotics are found, it may not be inferred that [the defen-
dant] knew of the presence of the narcotics and had
control of them, unless there are other incriminating
statements or circumstances tending to buttress such
an inference.’’ (Citations omitted; internal quotation
marks omitted.) State v. Billie, 123 Conn. App. 690,
696–97, 2 A.3d 1034 (2010). In determining whether
the attendant incriminating circumstances support an
inference of constructive possession, the proper focus
is on the relationship between the defendant and the
contraband found in the apartment rather than on the
relationship between the defendant and the apartment
itself. See, e.g., State v. Gainey, 116 Conn. App. 710,
722–23, 977 A.2d 257 (2009).
‘‘[I]t is well settled that if the contraband is found in
a place where the defendant does not have exclusive
possession, the presence of the defendant near the con-
traband without more is insufficient to support an infer-
ence of possession.’’ State v. Brunori, 22 Conn. App.
431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580
A.2d 61 (1990). ‘‘To mitigate the possibility that innocent
persons might be prosecuted for . . . possessory
offenses . . . it is essential that the state’s evidence
include more than just a temporal and spatial nexus
between the defendant and the contraband.’’ (Internal
quotation marks omitted.) State v. Fermaint, 91 Conn.
App. 650, 655, 881 A.2d 539, cert. denied, 276 Conn. 922,
888 A.2d 90 (2005).
In the present case, because drugs were not found
on the defendant’s person, the state proceeded at trial
on the theory that the defendant constructively pos-
sessed the drugs found in the common areas of the
apartment. It is undisputed that the defendant did not
exclusively possess the apartment or make any incrimi-
nating statements. Thus, the question is whether the
other circumstances were sufficiently incriminating to
support an inference that the defendant constructively
possessed the narcotics police discovered in the
apartment.
In reaching its judgment, the court relied on several
factors that it deemed sufficiently incriminating to sup-
port an inference of constructive possession: the defen-
dant’s status as the target of the police investigation;
his presence in the areas of the apartment where drugs
and paraphernalia were found—namely, the kitchen
and the balcony; his meeting with the driver of the
pickup truck; and his unfettered access to the apart-
ment, for which Denise Espinal provided an incredible
explanation. None of these factors, alone or in combina-
tion with the others, supports such an inference. We
address each of them in turn.
First, the defendant’s status as a target of the investi-
gation is not, in our view, an incriminating circumstance
that supports an inference that he constructively pos-
sessed the cocaine and paraphernalia in the apartment.
The fact that the defendant was a target of the investiga-
tion merely indicates law enforcement’s suspicion that
he might be guilty of an offense. Neither the officers’
suspicions nor their decision to target the defendant,
however, is a permissible consideration in determining
the defendant’s guilt. Under our law, fact finders are
not permitted to use the defendant’s arrest or the infor-
mation as evidence of the defendant’s guilt. Indeed, our
courts routinely instruct jurors that the information ‘‘is
merely the formal means of accusing a person of a
crime and bringing [him] to trial. You must not consider
it as any evidence of the guilt of the defendant or draw
any inference of guilt because the defendant has been
arrested and formally charged.’’ Connecticut Criminal
Jury Instructions (4th Ed. 2008) § 1.2-2, available at
http://www.jud.ct.gov/JI/criminal/part1/1.2-2.htm (last
visited December 3, 2015). It would be incongruous to
forbid a jury from considering a defendant’s arrest as
evidence of guilt, yet to permit a trial court to use the
defendant’s status as a target of an investigation as a
basis for concluding that he is guilty.
Second, the defendant’s presence in the kitchen and
on the balcony established nothing more than a tempo-
ral and spatial nexus between him and the cocaine and
packaging materials found in those areas. The evidence
established merely that he briefly appeared in those
areas.7 Indeed, our cases ‘‘show that a compelling corre-
lation between the actions of a defendant prior to arrest
and the conclusion of dominion and control is required
before we will find that the [fact finder’s] conclusion
was a reasonable inference.’’ State v. Billie, supra, 123
Conn. App. 701. We find the following cases instructive
in assessing whether the correlation between a defen-
dant’s actions and a conclusion that he exercised
dominion and control over narcotics is sufficiently com-
pelling.
In State v. Butler, 296 Conn. 62, 993 A.2d 970 (2010),
the evidence showed that during a traffic stop, the
defendant made a movement toward the center console
of the car he was driving and closed the console as
police officers approached. The officers observed a
plastic bag that contained cocaine protruding from a
corner of the console. Id., 79. The court held that ‘‘[t]his
manipulation of the console within which the narcotics
were discovered . . . buttressed the jury’s inference
that the defendant knew about the narcotics and had
control over them.’’ Id.Similarly, in State v. Goodrum, 39 Conn. App. 526,
665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554(1995), the evidence established that the defendant had
carried a brown paper bag into an apartment. Id., 529.
He was seen leaving the apartment without the brown
paper bag. Id., 531. Thirty minutes later, police officers
found narcotics in the apartment in a brown paper bag
similar to the bag the defendant was seen carrying into
the apartment. Id., 529–30. The court concluded that
these circumstances, along with witness testimony that
the narcotics were not in the apartment prior to the
defendant’s entry, buttressed an inference of construc-
tive possession. Id., 533.
Lastly, in State v. Forde, 52 Conn. App. 159, 726 A.2d
132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999),
the evidence established that police officers saw the
defendant approach the passenger side of a pickup
truck and take money from the driver. Id., 165. They
next observed the defendant make a subtle waving
motion to one of his confederates and then saw his
confederate walk toward a stone wall where the narcot-
ics were later discovered in a paper bag. Id. The confed-
erate then returned to the pickup truck and handed the
driver an item. Id. We determined that a jury reasonably
could have inferred that the defendant constructively
possessed the narcotics in the paper bag on the basis
of the officers’ observation of the defendant conducting
a drug deal near the location of the bag. Id.
Unlike the previously mentioned cases, the state has
failed to produce evidence that shows a compelling
correlation between the defendant’s actions in this case
and the conclusion that he controlled the narcotics in
the apartment. Indeed, in Butler, Goodrum, and Forde,
the evidence showed the defendants making suspicious
movements toward the narcotics, or carrying a bag simi-
lar to one later found to contain narcotics, or engaging
in a drug sale near the narcotics. Here, by contrast,
there was no evidence that the defendant was observed
carrying anything into the kitchen or onto the balcony,
no evidence that he touched anything while in the
kitchen or on the balcony, and no evidence that he left
the kitchen or balcony with anything. In other words,
there was no compelling correlation between the defen-
dant simply being in the apartment where drugs and
paraphernalia later were discovered and the conclusion
that he constructively possessed those narcotics and
paraphernalia.
Accordingly, the court’s conclusion that the defen-
dant ‘‘had no reason to be on that third floor level . . .
presumably, but for the fact that he was there seeking
out some product that related to these ziplock bags,’’
was speculative. It required further speculation for the
court to conclude, on the basis of the defendant’s mere
proximity to the packaging materials and his passage
through the kitchen, that he controlled the cocaine
found in the kitchen cabinets and garbage. The kitchen
was a common area used by the apartment’s occupants
and was adjacent to the main entry door, requiring the
defendant, like anyone entering the apartment, to pass
through it.
Third, the evidence regarding the defendant’s meet-
ing with the driver of the pickup truck and the driver’s
apparent snorting of some substance thereafter falls
short of supporting an inference that the defendant
controlled the cocaine in the apartment. During their
meeting, the defendant merely leaned in and spoke with
the driver very briefly. There was no evidence of any
suspicious movement by which cocaine may have
changed hands.8 See State v. Fermaint, supra, 91 Conn.
App. 660 (concluding that defendant’s furtive move-
ment of leaning forward from backseat of car toward
driver did not support inference of defendant’s con-
structive possession of drugs found on driver); cf. State
v. Forde, supra, 52 Conn. App. 165 (finding constructive
possession where officers witnessed money and item
change hands). Moreover, Ramos could not see from
his vantage point the substance that the driver appeared
to be snorting. He could testify only that snorting is a
means of ingesting cocaine. Finally, because police did
not conduct a stop of the pickup truck, there was no
confirmation of what the driver was snorting, if
anything.
Even considered together with the defendant’s prior
presence in the apartment, the driver’s apparent snort-
ing of some unknown substance following a brief con-
versation with the defendant did not tend to support an
inference of a drug sale and, by extension, constructive
possession. Without evidence of any item changing
hands or of the substance the driver was supposedly
consuming, his suspicious movements did not trans-
form the defendant’s prior presence on the balcony and
in the kitchen into something more than mere proximity
to the contraband seized from those places. To con-
clude otherwise required the court to engage in imper-
missible speculation.
Fourth, the defendant’s access to the apartment over
the prior nine month span did not support an inference
of his knowledge and control of the drugs or parapher-
nalia inside. Although a January, 2012 earnings state-
ment and an October, 2012 money transfer receipt that
bore the defendant’s name were found in the apartment,
all of the apartment’s occupants had access to the areas
in which these documents were found. See State v.
Gainey, supra, 116 Conn. App. 723 (concluding that
utility shutoff notice and mobile phone instruction man-
ual bearing defendant’s name, found in vehicle that was
not currently under his control, did not establish his
control of drugs found in ashtray of vehicle’s rear pas-
senger compartment).
Denise Espinal, the defendant’s sister-in-law, testified
that he visited the apartment daily. The court concluded
that this was an incriminating circumstance in part
because it elected not to credit Denise Espinal’s testi-
mony that ‘‘the only reason . . . that the defendant
came to this apartment was, simply, to see his brother,
and he did so on a regular basis . . . .’’ The court based
this adverse credibility determination on its finding that,
on further questioning, Denise Espinal indicated that
‘‘in fact, the defendant’s brother was not even in the
United States during the time in question.’’
Again, as we have noted, the defendant’s relationship
to the contraband, not his relationship to the apartment,
is the proper focus of the constructive possession
inquiry. See State v. Gainey, supra, 116 Conn. App.
722–23. In this case, given that the defendant nonexclu-
sively possessed the apartment, the fact that Denise
Espinal lacked credibility regarding the basis for his
daily presence in the apartment sheds little, if any, light
on the central question of his relationship to the drugs
and paraphernalia located therein.
Finally, we are equally unpersuaded that even when
all of the previously mentioned factors are considered
together, they establish anything more than a temporal
and spatial nexus between the defendant and the
cocaine found in common areas of the apartment. Thus,
they are insufficient proof that the defendant exercised
dominion and control over the narcotics. Stated differ-
ently, the evidence did not establish a compelling con-
nection between the defendant’s acts and the
conclusion that he controlled the contraband. See State
v. Billie, supra, 123 Conn. App. 701. Construing the
evidence in the light most favorable to sustaining the
trial court’s judgment, we do not find incriminating
circumstances buttressing a reasonable inference of
constructive possession.
The judgment is reversed and the case is remanded
with direction to render judgment of not guilty.
In this opinion the other judges concurred.
1
The defendant also claims that his right to conflict-free representation
was violated when the trial court failed to inquire into a potential conflict
of interest involving his attorney. Because we conclude that the evidence
was insufficient to sustain the defendant’s conviction, we do not reach
this claim.
2
Although the police believed that the defendant was married to Denise
Espinal and lived with her in the apartment, the evidence at trial indicated
that she had married Ronny De Oleo Nova, the defendant’s brother, in the
Dominican Republic in 2011. Police found, but did not seize, men’s clothing
in her locked bedroom. Denise Espinal testified that De Oleo Nova moved
into the apartment in late October, 2012, and that she kept the clothing in
anticipation of his arrival.
3
Unlike the materials found in the kitchen garbage, the materials seized
from the balcony were not submitted for forensic analysis.
4
At trial, the court admitted testimony that in 2000, police conducting a
search of the defendant’s then residence on Chapel Street in Danbury found
nineteen plastic bags of cocaine in his apartment and a magnetic key box
containing eight more bags of cocaine attached to a radiator in the hallway
outside; that the defendant admitted the cocaine was his; and that he was
arrested and pleaded guilty to a charge of possession of narcotics.
5
In its oral decision, the trial court stated that it was ‘‘not suggesting
anything with regard to [the] locked [bedroom].’’ Because the trial court
indicated that the contents of the locked bedroom did not play a role in
its judgment, whether there was sufficient evidence that the defendant
constructively possessed the key box containing cocaine residue that was
found in that room is not a part of our analysis of the defendant’s claim
on appeal.
6
To the extent that the defendant failed to preserve his claim, we have
held that an unpreserved claim of evidentiary insufficiency is reviewable
because it is of constitutional magnitude. ‘‘[A]ny defendant found guilty on
the basis of insufficient evidence has been deprived of a constitutional right,
and would therefore necessarily meet the four prongs of [State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989)]. There being no practical signifi-
cance, therefore, for engaging in a Golding analysis of an insufficiency of
the evidence claim, we will review the defendant’s challenge to his conviction
. . . as we do any properly preserved claim.’’ (Internal quotation marks
omitted.) State v. Lewis, 303 Conn. 760, 767 n.4, 36 A.3d 670 (2012).
7
Notably, there was testimony that Odalis Santana, who, until that morn-
ing, occupied the bedroom adjacent to the balcony where the defendant
had been seen, had sold marijuana.
8
We note that the state did not charge the defendant with sale of narcotics
on the basis of his meeting with the pickup truck driver.