State v. Jodi D. ( 2021 )

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STATE v. JODI D.*
(SC 20370)
McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Argued December 7, 2020—officially released August 31, 2021**
Procedural History
Substitute information charging the defendant with
the crimes of assault of a disabled person in the second
degree, assault in the third degree and reckless endan-
germent in the second degree, brought to the Superior
Court in the judicial district of Waterbury, geographical
area number four, and tried to the jury before Cremins,
J.; verdict of guilty of assault of a disabled person in
the second degree and reckless endangerment in the
second degree; thereafter, the court vacated the verdict
as to the charge of reckless endangerment in the second
degree; judgment of guilty of assault of a disabled per-
son in the second degree, from which the defendant
appealed to the Appellate Court, Sheldon, Keller and
Flynn, Js., which affirmed the trial court’s judgment,
and the defendant, on the granting of certification,
appealed to this court. Reversed; new trial.
Megan L. Wade, assigned counsel, with whom was
James P. Sexton, assigned counsel, for the appellant
(defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Karen Diebolt, former assistant state’s attor-
ney, for the appellee (state).
Naomi T. Fetterman filed a brief for the Connecticut
Criminal Defense Lawyers Association as amicus
curiae.
Opinion
McDONALD, J. The issues before us in this appeal
are (1) whether the term ‘‘physically disabled,’’ as used
in General Statutes § 53a-60b (a) (1) and defined by
General Statutes § 1-1f (b), is unconstitutionally vague
as applied to the conduct of the defendant, Jodi D.,
who was convicted of assault on a victim who suffered
from fibromyalgia and other physical ailments, (2) if
the statutes are not unconstitutionally vague, whether
they are unconstitutionally overinclusive, and (3)
whether there was insufficient evidence to establish
that the victim suffered from a physical disability within
the meaning of § 53a-60b (a) (1).
The defendant was charged with assault of a disabled
person in the second degree in violation of § 53a-60b
(a) (1), assault in the third degree in violation of General
Statutes § 53a-61 (a) (1) and reckless endangerment in
the second degree in violation of General Statutes § 53a-
64 (a) after an altercation with the victim, the defen-
dant’s sister, during which the defendant struck the
victim with a wooden billy club. The jury found the
defendant guilty of assault of a disabled person in the
second degree and reckless endangerment in the sec-
ond degree and not guilty of assault in the third degree,
and the trial court rendered judgment of conviction.
Thereafter, the defendant appealed to the Appellate
Court, claiming, among other things, that ‘‘§ 53a-60b
(a) (1) is unconstitutionally vague as applied to her
conduct’’ and that ‘‘the evidence did not support a find-
ing that the victim was physically disabled . . . .’’
(Footnote omitted.) State v. Dojnia, 190 Conn. App.
353, 355–56, 210 A.3d 586 (2019). The Appellate Court
rejected these claims and affirmed the judgment of con-
viction. Id., 386. We then granted the defendant’s peti-
tion for certification to appeal to this court, limited
to the following issues: (1) ‘‘Did the Appellate Court
correctly conclude that . . . §§ 1-1f (b) and 53a-60b (a)
(1) were not unconstitutionally vague as applied to the
defendant?’’ And (2) ‘‘[d]id the Appellate Court correctly
conclude that the evidence the state presented at trial
was sufficient to prove beyond a reasonable doubt that
the victim was ‘physically disabled’ under the governing
statutes?’’ State v. Dojnia, 333 Conn. 914, 215 A.3d 1211(2019). The defendant also claims on appeal that, even
if the statutes are not unconstitutionally vague, § 53a-
60b (a) (1) is unconstitutional because there is no
rational nexus between the broad scope of the statute
and the legislature’s narrow purpose in enacting it.1
Although we reject the defendant’s claim that the stat-
utes are unconstitutionally vague, we conclude that
they are unconstitutionally overinclusive and lack any
rational basis as applied to assaults on persons whose
physical disabilities neither diminish their ability to
defend themselves from assault nor make them particu-
larly vulnerable to injury. Accordingly, we reverse the
judgment of the Appellate Court and remand the case
for a new trial.
The opinion of the Appellate Court sets forth the
following facts that the jury reasonably could have
found. ‘‘In October, 2015, the defendant and the victim,
who are sisters, resided in separate units of a duplex
style home in Naugatuck that was owned by their
mother. For years prior to the events at issue, the victim
suffered from chronic pain and was physically limited
in performing everyday tasks, such as standing, walk-
ing, and climbing stairs.
‘‘For several years prior to the events at issue, the
defendant and the victim did not have a good relation-
ship. The relationship between the defendant and the
victim worsened in January, 2015, when the defendant’s
son, who resided with the defendant, was involved in
an altercation with the victim at her residence.
According to the victim, during this prior incident, the
defendant’s son broke down her back door and attacked
her, which led to his arrest. Tensions escalated further
because the defendant was unhappy with the fact that
the victim’s dog entered her portion of their shared
backyard, and that the victim failed to clean up after
her dog. Shortly before the incident underlying this
appeal, the defendant erected a small plastic fence to
separate her backyard from that of the victim in an
attempt to keep the victim’s dog away. The fence ran
across the backyard and between the two rear doors
of the residence. The victim was unhappy about the
fence. The victim’s mother had asked the victim to look
for another place to live, and, by October, 2015, the
victim was actively planning to move out of her resi-
dence.
‘‘Late in the evening on October 10, 2015, the victim
walked out of the front door of her residence. From
one of the windows of the defendant’s residence, the
defendant made a negative comment to the victim, who
was talking on her cell phone, but the victim declined to
engage the defendant in conversation. At approximately
1:30 a.m., on October 11, 2015, the victim left her resi-
dence to walk her dog by means of her back door,
which was adjacent to the back door leading into the
defendant’s residence. By this point in time, the victim
had consumed multiple alcoholic beverages. The victim
walked her dog in the vicinity of her nearby driveway.
‘‘While the victim was reentering her residence with
her dog, she noticed that a light had been turned on
inside of the defendant’s residence. The victim then
stepped back outside, at which time the defendant, who
was lurking near the victim’s back door, grabbed the
victim by the upper part of her body and pulled her
over the small plastic fence that was separating their
backyards, causing the victim to topple to the ground. A
physical struggle between the defendant and the victim
ensued, during which the defendant struck the victim
repeatedly with a wooden billy club. The victim, while
lying on the ground, tried to prevent the defendant
from continuing to strike her. The victim grabbed the
defendant’s hand and pulled her by her hair, causing
[the defendant] to fall on top of [the victim]. The victim
repeatedly told the defendant to ‘[l]et go’ of the billy
club, and the defendant told the victim that she was
tired of her, that she hated her, and that she wanted
her ‘out of here.’
‘‘Ultimately, the victim restrained the defendant, and
the victim asked her what their father, who had died,
would say to them if he saw them fighting. The defen-
dant promised not to strike the victim again, at which
time the victim released her grasp on the defendant’s
hair and the defendant stepped away from the victim.
‘‘The defendant picked up the victim’s cell phone,
which had fallen out of the victim’s hands during the
altercation, and gave it back to her. The victim tossed
aside one of the defendant’s garbage pails before mak-
ing her way back inside. The victim was bleeding from
her nose and choking on blood. The victim sustained
multiple bruises and lacerations on her face, back, left
arm, left shoulder, left leg, and torso. The victim’s right
eye swelled, and she experienced a great deal of pain,
particularly pain that emanated from her jaw. The vic-
tim’s clothing was stained with blood and dirt, and she
was unable immediately to locate either her eyeglasses
or a pendant that she had been wearing prior to the
altercation.
‘‘After the victim went back inside of her residence,
she called the police. Soon thereafter, Naugatuck Police
Officer Robert Byrne arrived on the scene. He encoun-
tered the defendant and the victim arguing in front of
the residence. After he separated the sisters, he met
privately with the defendant. The defendant admitted
that she had struck the victim with the wooden billy
club, which was on her kitchen table but stated that
she had acted in self-defense. The defendant also stated
that she had begun arguing with the victim after she
caught the victim ‘snooping around in the backyard
. . . .’ She stated that the small plastic fence that she
had erected to prevent the victim’s dog from entering
her portion of the backyard was a cause of consterna-
tion between her and the victim. The defendant sus-
tained injuries during the incident and claimed to have
been ‘strangled’ by the victim, but her injuries were not
serious enough to warrant medical treatment. Byrne
arrested the defendant on the assault charge, took her
into custody, and transported her to police headquar-
ters to complete the booking process.
‘‘Naugatuck Police Officer Shane Andrew Pucci
arrived on the scene to provide Byrne with backup
assistance. He spoke with the victim privately in her
residence and accompanied her to a hospital after emer-
gency medical services arrived on the scene. At the
hospital, medical personnel took X-ray images of the
victim and treated her injuries. While at the hospital,
the victim provided Byrne with an oral statement con-
cerning the incident and her injuries. By 6 a.m. on Octo-
ber 11, 2015, the victim was discharged from the hospi-
tal and transported home. Pucci gave the victim a
misdemeanor summons for disorderly conduct.’’ State
v. Dojnia, supra, 190 Conn. App. 356–59.
The defendant was charged with assault of a disabled
person in the second degree, assault in the third degree
and reckless endangerment in the second degree. ‘‘At
trial, the victim testified about her extensive medical
history. She testified that she had experienced back
problems since 2000 and had undergone two surgical
procedures on her back. She testified that she had
undergone multiple ‘foot surgeries’ in 1990, ‘five or six
ear surgeries’ in 2000, and ‘one breast surgery.’ Also,
the victim testified that she had suffered from a nerve
condition called fibromyalgia, for which she receives
ongoing medical treatment. She testified that, at the
time that the assault occurred, she was using a variety
of medications that had been prescribed for her. Specifi-
cally, she was using a medication called Savella to treat
her fibromyalgia, three times per day. She was using a
medication called Vicodin to treat her pain, usually once
per day. She explained: ‘Depending on the day, if . . .
I know I’m not going to be doing much that day, I’ll
probably just take one [Vicodin] in the morning or when
I wake up.’ She also testified that she used Ambien,
which helped her to sleep, as needed. The victim testi-
fied that she had experienced physical limitations for
many years: ‘I can’t sit too long. I can’t stand too long.
Walking a far distance is difficult for me. Stairs are very
difficult for me to do if I’m carrying something. Just
grocery shopping, doing laundry, it’s a task for me to
do those things.’
‘‘The victim testified that she had received treatment
from her primary care physician as well as from Mat-
thew Letko, whom she described as being an employee
of ‘[the] arthritis center.’ The victim testified that she
had received Social Security disability payments since
2004, and that, in the ten years prior to her testimony
in 2017, she had not been engaged in any employment
to supplement her disability income.
‘‘The state presented testimony from Letko, who
explained that he was a physician’s assistant employed
by the Arthritis Center of Connecticut, in Waterbury.2
Letko testified that the victim had been a patient of
the center since February, 2008, and that he had been
treating her since 2009 for ‘chronic pain issues, chronic
low back pain and fibromyalgia syndrome.’ He testified
that fibromyalgia is ‘a widespread pain syndrome pri-
marily affecting muscles, upper back, mid-back, low
back, hips, shoulders. It presents with a lot of tender-
ness, sensitivity to touch. There can also be other symp-
toms associated, like fatigue, poor sleep.’ Letko testified
that the treatment that he provided to the victim
included prescribing ‘Savella, which is a medication
specifically approved for fibromyalgia syndrome, mus-
cle relaxants, anti-inflammatory medications; other
treatments also include injections, physical therapy,
[and] aquatic therapy.’ He testified that, in October,
2015, the victim was prescribed Savella, Ambien and
Vicodin. Letko testified that he evaluated the victim on
a monthly basis. He stated that the physical limitations
related to her chronic back pain and fibromyalgia
included difficulty in prolonged sitting, hearing, bend-
ing, lifting, and using stairs. Letko testified that,
although her pain symptoms may fluctuate from day to
day, her condition was not going to improve. He testified
that the goal of his treatment plan for the victim ‘would
be to manage the pain effectively enough where she
can have a quality of life where she can function around
the home, in the community . . . take care of herself,
get out of bed every morning, perform basic tasks
around the house.’ ’’ (Footnote in original.) Id., 365–67.
The defendant testified on her own behalf at trial.
On cross-examination, the defendant testified that she
knew that the victim was ‘‘disabled’’ and that she was
aware of some of the victim’s surgeries and physical
ailments. On redirect, the defendant testified that the
victim exaggerated and lied about her medical condi-
tions. She also testified that, contrary to the victim’s
testimony, the victim had worked as a dog walker and
house cleaner.3
The jury found the defendant guilty of assault of
a disabled person in the second degree and reckless
endangerment in the second degree. At sentencing, pur-
suant to the state’s request, the sentencing court
vacated the conviction of reckless endangerment in the
second degree on double jeopardy grounds pursuant
to State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084(2013). The court sentenced the defendant to five years
of imprisonment, suspended after two years, and three
years of probation.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, for the first time,
that ‘‘§ 53a-60b (a) (1) is unconstitutionally vague as
applied to her conduct.’’ State v. Dojnia, supra, 190
Conn. App. 359. Specifically, the defendant claimed
that, by incorporating the definition of ‘‘physical disabil-
ity’’ set forth in § 1-1f (b) into § 53a-60b (a) (1), the
legislature ‘‘impermissibly delegated basic policy mat-
ters to the courts for resolution of whether a diagnosis
of fibromyalgia falls within the definition of physically
disabled for resolution on an ad hoc basis. In so doing,
the enforcement of these statutes in the defendant’s
case [was] arbitrary.’’ (Internal quotation marks omit-
ted.) Id., 361. The Appellate Court concluded that ‘‘the
term ‘physical disability,’ as used in § 1-1f (b), has a
readily ascertainable meaning. It refers to any recurring
bodily condition that detrimentally affects one’s ability
to carry out life’s activities, regardless of whether it
is congenital, [or] the result of bodily injury, organic
processes, or . . . illness. The language used in the
statute, particularly the phrase, ‘not limited to,’ reflects
that the legislature did not intend to set forth an exhaus-
tive list of each and every bodily condition that could
result in a physical disability, and the fact that the legis-
lature did not do so does not necessitate a conclusion
that the statute lacks sufficient guidance with respect
to its meaning.’’ (Emphasis in original.) Id., 369. The
court concluded that the defendant’s conduct ‘‘clearly
came within the unmistakable core of conduct prohib-
ited by § 53a-60b (a) (1)’’; id.; and, accordingly, rejected
the defendant’s claim that the statute is unconstitution-
ally vague as applied to her conduct. Id., 359.
The Appellate Court also rejected the defendant’s
claim that the state had failed to prove that the victim
suffered from fibromyalgia, concluding that there was
sufficient evidence that the victim suffered from ‘‘vari-
ous chronic pain issues, chronic low back pain, and
fibromyalgia,’’ and that, in any event, the state did not
have the burden of proving that ‘‘the victim’s physical
disability was caused by any particular illness or injury.’’
(Internal quotation marks omitted.) Id., 375. For similar
reasons, the court rejected the defendant’s claim that
fibromyalgia is not a physical disability under § 53a-60b
(a) (1) as a matter of law. Id., 376–78. Accordingly, the
court concluded that there was sufficient evidence to
support the jury’s finding that the victim suffered from
a physical disability. Id., 377–78. Having rejected the
defendant’s claims on appeal,4 the court affirmed the
judgment of conviction. Id., 386.
This certified appeal followed.5 The defendant claims
on appeal that the Appellate Court incorrectly deter-
mined that §§ 53a-60b (a) (1) and 1-1f (b) are not uncon-
stitutionally vague as applied to her conduct. Specifi-
cally, she contends that, as applied in the criminal
context, § 53a-60b (a) (1) is ‘‘ambiguous’’ because § 1-
1f (b) is a remedial statute and, therefore, must be
liberally construed, whereas § 53a-60b (a) (1) is a crimi-
nal statute that must be strictly construed. The defen-
dant further contends that § 53a-60b (a) (1) is unconsti-
tutional because its broad scope lacks any rational
nexus to the intent of the legislature in enacting the
statute, namely, to protect persons who have a dimin-
ished ability to defend themselves from assault or who
are particularly vulnerable to injury.6 Finally, the defen-
dant contends that the evidence was insufficient to
establish that the victim was physically disabled for
purposes of § 53a-60b (a) (1). We conclude that §§ 53a-
60b (a) (1) and 1-1f (b) are not unconstitutionally vague.
We agree with the defendant, however, that § 53a-60b
(a) (1) is unconstitutionally overinclusive as applied to
assaults on persons whose physical disabilities neither
diminish their ability to defend themselves from assault
nor make them particularly vulnerable to injury.
Because the jury was not instructed on the proper stan-
dard for determining whether the victim had a physical
disability within the meaning of § 53a-60b (a) (1), we
further conclude that the case must be remanded for
a new trial.
We first address the defendant’s claim that §§ 53a-
60b (a) (1) and 1-1f (b) are unconstitutionally vague
as applied to her conduct. This issue presents a legal
question subject to de novo review. See, e.g., State v.
Kirby, 137 Conn. App. 29, 39, 46 A.3d 1056, cert. denied,
307 Conn. 908, 53 A.3d 222 (2012). ‘‘A statute . . . [that]
forbids or requires conduct in terms so vague that per-
sons of common intelligence must necessarily guess at
its meaning and differ as to its application violates the
first essential of due process. . . . Laws must give a
person of ordinary intelligence a reasonable opportu-
nity to know what is prohibited so that [she] may act
accordingly. . . . A statute is not void for vagueness
unless it clearly and unequivocally is unconstitutional,
making every presumption in favor of its validity. . . .
To demonstrate that [a statute] is unconstitutionally
vague as applied to [her], the [defendant] therefore must
. . . demonstrate beyond a reasonable doubt that [she]
had inadequate notice of what was prohibited or that
[she was] the victim of arbitrary and discriminatory
enforcement. . . . [T]he void for vagueness doctrine
embodies two central precepts: the right to fair warning
of the effect of a governing statute . . . and the guaran-
tee against standardless law enforcement. . . . If the
meaning of a statute can be fairly ascertained a statute
will not be void for vagueness [because] [m]any statutes
will have some inherent vagueness, for [i]n most English
words and phrases there lurk uncertainties. . . . Refer-
ences to judicial [decisions] involving the statute, the
common law, legal dictionaries, or treatises may be
necessary to ascertain a statute’s meaning to determine
if it gives fair warning.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Scruggs, 279 Conn. 698,
709–10, 905 A.2d 24 (2006).
The United States Supreme Court has previously held
that ‘‘the more important aspect of the vagueness doc-
trine is not actual notice, but the other principal element
of the doctrine—the requirement that a legislature
establish minimal guidelines to govern law enforce-
ment. . . . [When] the legislature fails to provide such
minimal guidelines, a criminal statute may permit a
standardless sweep [that] allows policemen, prosecu-
tors, and juries to pursue their personal predilections.’’
(Citation omitted; internal quotation marks omitted.)
Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855,
75 L. Ed. 2d 903 (1983); see, e.g., Grayned v. Rockford,
408 U.S. 104, 108–109, 92 S. Ct. 2294, 33 L. Ed. 2d 222(1972) (‘‘[a] vague law impermissibly delegates basic
policy matters to [police officers], judges, and juries
for resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory
application’’).
With these principles in mind, we turn to the defen-
dant’s claim that §§ 53a-60b (a) (1) and 1-1f (b) are
unconstitutionally vague. Section 53a-60b (a) provides
in relevant part: ‘‘A person is guilty of assault of [a]
. . . disabled . . . person . . . in the second degree
when such person commits assault in the second degree
under section 53a-60 . . . and (1) the victim of such
assault . . . is . . . physically disabled, as defined in
section 1-1f . . . .’’ Section 1-1f (b) provides that ‘‘[a]n
individual is physically disabled if he has any chronic
physical handicap, infirmity or impairment, whether
congenital or resulting from bodily injury, organic pro-
cesses or changes or from illness, including, but not
limited to, epilepsy, deafness or hearing impairment or
reliance on a wheelchair or other remedial appliance
or device.’’
The defendant concedes that ‘‘[t]here is nothing
inherently ambiguous about [the] terms’’ used in §§ 53a-
60b (a) (1) and 1-1f (b), and that the legislature plainly
intended that the definition of ‘‘physically disabled’’ set
forth in § 1-1f (b) would, in the civil context, ‘‘encom-
pass as many individuals as possible . . . .’’7 The defen-
dant contends, however, as applied in the criminal con-
text, § 53a-60b (a) (1) is ‘‘ambiguous’’ because § 1-1f
(b) is a remedial statute and, therefore, must be liberally
construed, whereas § 53a-60b (a) (1) is a criminal stat-
ute that must be strictly construed. Compare Vollemans
v. Wallingford, 103 Conn. App. 188, 197, 928 A.2d 586(2007) (Connecticut Fair Employment Practices Act,
General Statutes § 46a-51 et seq., is remedial legislation
that must ‘‘be construed liberally to effectuate [its]
beneficent purposes’’ (internal quotation marks omit-
ted)), aff’d, 289 Conn. 57, 956 A.2d 579 (2008), with State
v. Skakel, 276 Conn. 633, 674, 888 A.2d 985 (‘‘criminal
statutes are governed by the fundamental principle that
such statutes are strictly construed against the state’’
(internal quotation marks omitted)), cert. denied, 549
U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).
As a preliminary matter, we agree with the defendant
that, as used in § 53a-60b (a) (1), the term ‘‘physically
disabled’’ and, as used in § 1-1f (b), the words ‘‘handi-
cap,’’ ‘‘infirmity’’ and ‘‘impairment’’ are not so inherently
vague that a person of ordinary intelligence would not
know what conduct is prohibited, at least as applied
to the defendant’s conduct toward the victim. The term
‘‘handicap’’ is defined in part as ‘‘a disadvantage that
makes achievement unusually difficult; [especially]
. . . a physical disability that limits the capacity to
work.’’ Webster’s Third New International Dictionary
(2002) p. 1027. ‘‘Infirmity’’ is defined in part as ‘‘the
quality or state of being infirm’’ and ‘‘an unsound,
unhealthy, or debilitated state . . . .’’ Id., 1159. ‘‘Infirm’’
is defined in part as ‘‘not strong or sound physically’’
or ‘‘of poor or deteriorated vitality [especially] as a
result of age . . . .’’ Id. ‘‘Impairment’’ is defined in part
as ‘‘the act of impairing or the state of being impaired:
INJURY : DETERIORA-
TION ’’ Id., 1131. ‘‘Impair’’ is
defined in part as ‘‘to make worse,’’ ‘‘diminish in quan-
tity, value, excellence, or strength,’’ or ‘‘do harm to
. . . .’’ Id. We conclude on the basis of these definitions
that ‘‘physically disabled,’’ as used in § 53a-60b (a) (1),
clearly means having a physical condition that dimin-
ishes the ability of a person, or a part or organ of
the person, to function properly, thereby limiting the
person’s ability to perform life’s activities, such as work-
ing.8
We further note that our sister courts have previously
rejected claims that the terms ‘‘handicap’’ and
‘‘impaired’’ are unconstitutionally vague. In State v.
Allen, 334 N.J. Super. 133, 756 A.2d 1087 (Law Div.
2000), overruled in part by State v. Dixon, 396 N.J.
Super. 329, 933 A.2d 978 (App. Div. 2007), the Law
Division of the Superior Court of New Jersey considered
the constitutionality of a state statute that imposed an
enhanced penalty on a defendant who, in committing
a crime, ‘‘acted with the purpose to intimidate’’ a person
‘‘because of . . . [a] handicap . . . .’’ (Internal quota-
tion marks omitted.) Id., 136. The court rejected a claim
that the statute was unconstitutionally vague because
‘‘handicapped’’ had been defined by dictionary as ‘‘hav-
ing a physical or mental disability that substantially
limits activity.’’ (Internal quotation marks omitted.) Id.,
139. In addition, ‘‘disability’’ had been defined as ‘‘inca-
pacitated by illness, injury or wound.’’9 (Internal quota-
tion marks omitted.) Id.In People v. Percz, 100 Misc. 2d 1018, 420 N.Y.S.2d
477 (1979), the defendant contended that a New York
statute that prohibited, among other things, ‘‘driving
while impaired by the use of a drug’’ was unconstitution-
ally vague. Id., 1018. In support of this claim, he relied
on a case holding that two subdivisions of that same
statute that prohibited driving while intoxicated—a mis-
demeanor—or while impaired—a ‘‘violation’’—were
unconstitutionally vague because the statute provided
no standards for determining whether a defendant was
‘‘ ‘impaired’ ’’ or ‘‘ ‘intoxicated,’ ’’ and because ‘‘there
was no evidence that the defendant was sufficiently
drunk to make such standard unnecessary . . . .’’ Id.,
1019. The court in Percz held that, because the subdivi-
sion of the statute that the defendant was charged with
violating only prohibited operation of a vehicle while
‘‘ ‘impaired’ ’’ and required ‘‘no differentiation between
degrees of drug influence,’’ that provision was not
unconstitutionally vague. Id. Thus, the court implicitly
held that any degree of impairment clearly came within
the statutory prohibition. Accordingly, we conclude—
as, indeed, the defendant does not dispute—that the
victim in the present case was clearly physically dis-
abled within the meaning of §§ 53a-60b (a) (1) and 1-
1f (b) because she had a physical condition that dimin-
ished her ability to function, thereby limiting her ability
to perform life’s activities.
The defendant contends, however, that, because
§ 53a-60b (a) is a criminal statute that must be strictly
construed, and § 1-1f (b) is a remedial statute that must
be liberally construed, this somehow renders these oth-
erwise clear statutes vague. We are not persuaded. The
rule that criminal statutes must be strictly construed is a
rule of statutory construction that applies to inherently
ambiguous criminal statutes, not a rule of substantive
law barring the legislature from enacting broad criminal
statutes. See, e.g., Albernaz v. United States, 450 U.S.
333, 342, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) (‘‘Lenity
. . . serves only as an aid for resolving an ambiguity;
it is not to be used to beget one. The rule comes into
operation at the end of the process of construing what
[the legislature] has expressed, not at the beginning as
an overriding consideration of being lenient to wrong-
doers.’’ (Internal quotation marks omitted.)). Nor does
the rule render a broad but clear and unambiguous
criminal statute ambiguous. See, e.g., id., 342–43.
The defendant also claims that, even if §§ 53a-60b (a)
(1) and 1-1f (b) are sufficiently clear to give notice to
a person of ordinary intelligence of what conduct is
prohibited, they are unconstitutionally vague because
they confer ‘‘unfettered discretion [on police officers],
prosecutors, judges and juries to determine which vic-
tims [are] physically disabled ‘enough’ to warrant
enhanced criminal liability . . . .’’ See, e.g., Kolender
v. Lawson, supra, 461 U.S. 358 (‘‘[T]he more important
aspect of the vagueness doctrine is not actual notice,
but the other principal element of the doctrine—the
requirement that a legislature establish minimal guide-
lines to govern law enforcement. . . . [When] the legis-
lature fails to provide such minimal guidelines, a crimi-
nal statute may permit a standardless sweep [that]
allows policemen, prosecutors, and juries to pursue
their personal predilections.’’ (Citation omitted; internal
quotation marks omitted.)); see also, e.g., United States
v. Davis, U.S. , 139 S. Ct. 2319, 2325, 204 L.
Ed. 2d 757 (2019) (‘‘[v]ague statutes threaten to hand
responsibility for defining crimes to relatively unac-
countable police [officers], prosecutors, and judges,
eroding the people’s ability to oversee the creation of
the laws they are expected to abide’’); 16B Am. Jur.
2d 488–89 n.8, Constitutional Law § 962 (2020) (‘‘[a]n
unconstitutionally vague law invites arbitrary enforce-
ment . . . if it leaves judges and jurors free to decide,
without any legally fixed standards, what is prohibited
and what is not in each particular case’’). A careful
review of these authorities, however, makes it clear
that the notice prong and the arbitrary enforcement
prong of the vagueness doctrine are inextricably inter-
twined; that is, an unconstitutionally vague statute
allows for arbitrary enforcement because a person of
common intelligence, whether the person is a defen-
dant, a police officer, a prosecutor, a judge or a juror,
must guess at its meaning. Conversely, a statute that
is sufficiently clear to give a person of common intelli-
gence notice of what is prohibited necessarily is suffi-
ciently clear to cabin the discretion of police officers
and prosecutors within constitutional limits. Because
we have concluded that the statutes are sufficiently
clear to give notice to a person of ordinary intelligence
that the victim was physically disabled for purposes of
§ 53a-60b (a) (1), we reject this claim.10
Finally, the defendant claims that § 53a-60b (a) (1)
is unconstitutional because there is no rational nexus
between the exceedingly broad scope of the ‘‘physically
disabled’’ prong and the legislature’s relatively narrow
intent in enacting the statute. The defendant points out
that the legislative history of § 53a-60b (a) (1) indicates
that the legislation was intended to prevent crimes
against persons who are particularly vulnerable to
assault and injury as a result of being physically dis-
abled, and she claims that, unless a limiting gloss is
applied, it can be applied to persons who do not fall
within that class. See 20 S. Proc., Pt. 7, 1977 Sess., p.
2822, remarks of Senator Salvatore C. DePiano (pro-
posed legislation ‘‘is directed at trying to stop . . .
assaults [on] people who are blind and elderly and dis-
abled who cannot defend themselves’’); 20 H.R. Proc.,
Pt. 7, 1977 Sess., p. 2896, remarks of Representative
Robert G. Gilligan (expressing concerns about ‘‘vulnera-
bility to crime,’’ ‘‘diminished physical strength and stam-
ina’’ and diminished ability of persons covered by stat-
ute ‘‘to defend themselves or to [escape] from
threatening situations’’); 20 H.R. Proc., supra, p. 2896
(noting that elderly persons are more easily injured and
slower to recover from injury); Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 2, 1977 Sess., pp.
479–82 (testimony of seventy-seven year old woman
regarding multiple assaults and robberies that she had
suffered and vulnerabilities of elderly people).
As we indicated, although the defendant frames this
claim as implicating the vagueness doctrine, it more
properly is characterized as a claim that § 53a-60b (a)
(1) is unconstitutionally overinclusive. See footnote 6
of this opinion; see also footnote 1 of this opinion and
accompanying text. In other words, the defendant effec-
tively contends that the statute violates substantive due
process principles because many of its clear applica-
tions are not rationally related to a legitimate govern-
ment purpose. See, e.g., State v. Higgins, 265 Conn. 35,
68–69, 826 A.2d 1126 (2003) (recognizing in dictum that
statute may be so overinclusive or underinclusive that
it does not rationally advance legislative purpose); see
also, e.g., United States v. Thornton, 901 F.2d 738,
739–40 (9th Cir. 1990) (when defendant claimed that
statute was overinclusive, and statute did not impinge
on constitutionally protected conduct or implicate sus-
pect class, court considered whether classification cre-
ated by statute was irrational or unreasonable); Bynes
v. State, 854 So. 2d 289, 291 (Fla. App. 2003) (when
defendant claimed that statute was overinclusive, court
applied principle that ‘‘[t]he rational basis test requires
the legislature to have a legitimate purpose for enacting
the statute and to select means which have a reasonable
and substantial relation to its purpose which are not
unreasonable, arbitrary, or capricious’’), review denied,
892 So. 2d 1011 (Fla. 2004); State v. Mitchell, 757 N.W.2d
431, 439 (Iowa 2008) (‘‘[e]ven under the rational basis
test, a statute may be unconstitutional if it is so overin-
clusive and underinclusive as to be irrational’’).11
We agree with the defendant that § 53a-60b (a) (1)
is unconstitutionally overinclusive. For example, on its
face, the statute clearly would apply to an assault on an
Olympic boxer who suffered from chronic but episodic
migraine headaches that completely incapacitated him
while they were occurring even if, at the time of the
assault, he was not experiencing one.12 Such an applica-
tion of the statute would have no reasonable and sub-
stantial relation to the statute’s purpose of protecting
those who have a diminished capacity to defend them-
selves or who are particularly vulnerable to injury.
At least one court has recognized that, if a statute is
unconstitutionally overinclusive, the statute still may
constitutionally be applied to conduct that is within the
statute’s rational core. In People v. Rodriguez, 66 Cal.
App. 4th 157, 77 Cal. Rptr. 2d 676 (1998), the defendant
challenged the constitutionality of a California statute
that provided that ‘‘[t]he penalty for a defendant who
is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the
possibility of parole if,’’ as was applicable to that case,
‘‘[t]he murder was intentional and perpetrated by means
of discharging a firearm from a motor vehicle, intention-
ally at another person or persons outside the vehicle
with the intent to inflict death.’’ (Internal quotation
marks omitted.) Id., 164. Specifically, the defendant in
Rodriguez contended that the statute was ‘‘invalid
because it [was] unconstitutionally overinclusive on its
face.’’ (Internal quotation marks omitted.) Id., 172. The
California Court of Appeal observed that ‘‘[s]tating that
a statute is merely overinclusive . . . presupposes that
parts of the statutory coverage have been properly
included. Here, [the] defendant recognizes that [the stat-
ute] could be constitutionally applied to drive-by shoot-
ings, stating that [he] is not asking this [c]ourt to second-
guess the wisdom of creating a drive-by special circum-
stance. The [l]egislative materials, and common knowl-
edge, amply support a judgment that drive-by murders
have become a widespread threat to public safety, and
a statutory provision directed at deterring such conduct
is fully within the power of the [l]egislature and the
voters to adopt. [The defendant’s] concern is the man-
ner in which the language of the provision will inevitably
be applied to reach conduct beyond the evil sought to
be remedied . . . . [The] [d]efendant’s forthright rec-
ognition that [the statute] can be constitutionally
applied in at least some circumstances—at least in
cases of drive-by shootings—necessarily refutes [his]
claim of facial invalidity unless an exception to the
general rule applies. . . . [N]o such exception applies.
This is not a [f]irst [a]mendment case, the statute is not
vague for due process purposes, [the] defendant was
not involved in exercising any constitutional right, there
is no danger of chilling the exercise of constitutional
rights by increasing the penalty for murder by shooting
out of a vehicle, etc. Hence [the statute] is not unconsti-
tutional on its face.’’ (Internal quotation marks omitted.)
Id.; see, e.g., id., 176 (statute constitutionally applied
to defendant because, even if it was overinclusive, he
had not established that his conduct did not come
within its rational core).
We find this reasoning persuasive. Accordingly, we
conclude that § 53a-60b (a) (1) constitutionally may be
applied to conduct that comes within its rational core,
namely, an assault on a person with a physical disability
that (1) diminishes the ability of the person, or a part
or organ of the person, to function properly, thereby
limiting the person’s ability to perform life’s activities,
and (2) diminishes the person’s ability to defend himself
from assault or renders him particularly vulnerable to
injury. See, e.g., Boisvert v. Gavis, 332 Conn. 115, 144,
210 A.3d 1 (2019) (court may ‘‘add interpretative gloss to
a challenged statute in order to render it constitutional’’
(internal quotation marks omitted)). In making the
determination as to whether the victim had a diminished
ability to defend himself or was particularly vulnerable
to injury, the jury must consider the condition of the
victim at the time of the assault.
In the present case, the jury was not instructed that
it must find that the victim had a diminished ability to
defend herself or that she was particularly vulnerable
to injury at the time of the assault in order to find the
defendant guilty of assault of a disabled person in the
second degree under § 53a-60b (a) (1). We conclude,
therefore, that the case must be remanded to the trial
court for a new trial at which the jury can be instructed
on the proper standard.13 See, e.g., State v. Salamon, 287
Conn. 509, 516–17, 550, 949 A.2d 1092 (2008) (defendant
was entitled to new trial when jury was not properly
instructed with respect to element of offense).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion D’AURIA and ECKER, Js., concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
** August 31, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We recognize that this issue may be outside the scope of the certified
questions because overinclusiveness and vagueness are distinct concepts.
Nevertheless, we address the issue because the defendant raised it before
the Appellate Court and it is closely intertwined with the certified questions.
See, e.g., Montoya v. Montoya, 280 Conn. 605, 617 n.11, 909 A.2d 947 (2006)
(this court has discretion to review issue that is outside scope of certified
questions); see also footnote 6 of this opinion.
2
‘‘The court recognized Letko, who testified that he had received training
and licensure as a physician’s assistant and had practiced under the supervi-
sion of a medical doctor, to be ‘an expert in the area of a physician’s
assistant.’ ’’ State v. Dojnia, supra, 190 Conn. App. 366 n.4.
3
The victim testified during the state’s case that she had not done any
‘‘side jobs’’ to supplement her Social Security disability income. When the
prosecutor asked the victim whether she had ever cleaned houses, she said
‘‘[n]ever.’’ When the prosecutor asked the victim whether she had walked
dogs, the victim replied that she had walked her own dog and her friends’
dogs. The victim did not indicate that she had done this on a regular basis
as a source of income.
4
The Appellate Court also rejected the defendant’s claim that the prosecu-
tor engaged in prosecutorial impropriety during closing argument. State v.
Dojnia, supra, 190 Conn. App. 378. The defendant does not challenge that
ruling on appeal to this court.
5
After this appeal was filed, we granted permission to the Connecticut
Criminal Defense Lawyers Association to file an amicus curiae brief in
support of the defendant’s position.
6
The state contends that the only claim that the defendant raised before
the Appellate Court and that is reviewable by this court is that §§ 53a-60b
(a) (1) and 1-1f (b) are unconstitutionally ‘‘vague as applied to her because
fibromyalgia purportedly does not rise to the level of a physical disability.’’
We disagree. Although the defendant’s brief to the Appellate Court was not
a model of clarity, the defendant expressly claimed that the statutes are ‘‘so
unclear that ordinary people cannot understand what specifically constitutes
‘physically disabled’ . . . .’’ The defendant also claimed that, although ‘‘the
legislature intended to enhance penalties [only] for crimes against the most
vulnerable, including those with clearly diagnosable and severe disabilities,’’
the statutes ‘‘arguably . . . could apply to nearly all victims.’’ Although the
defendant did not expressly characterize the latter claim as implicating the
overinclusiveness doctrine, her failure to label her argument using the cor-
rect technical rubric does not render the claim unreviewable.
The concurrence and dissent disagrees with this conclusion and contends
that the defendant’s arguments do not ‘‘constitute a separate claim under
the overinclusiveness doctrine.’’ As we explain subsequently in this opinion,
a statute is unconstitutionally overinclusive if it creates a classification and
its application to some members of the class is not rationally related to a
legitimate government purpose. The defendant in the present case has
claimed that it would be arbitrary to apply § 53a-60b (a) (1) to assaults on
victims who, although they suffer from a ‘‘physical disability,’’ as that term
is broadly defined, do not have a diminished ability to defend themselves
or a heightened vulnerability to injury. In other words, the defendant con-
tends that the class of persons to which the statute applies is larger than
the class of persons for whom application of the statute would be rationally
related to a legitimate government purpose, which is a classic overinclusive-
ness claim. The concurrence and dissent cites no authority for the proposi-
tion that a claim that has been distinctly raised is unreviewable because
the party making the claim did not attach the correct doctrinal label to it.
7
Somewhat inconsistently, the defendant also contends that ‘‘a person of
ordinary intelligence could not determine with a reasonable degree of cer-
tainty that a person who allegedly suffered from fibromyalgia and other
chronic pain issues would be considered ‘physically disabled’ and that,
consequently, [the person] would be subject to enhanced criminal liability.’’
In the very next sentence, however, she contends that this is so because
§ 53a-60b (a) (1) is a criminal statute. As we subsequently explain in the
body of this opinion, a statute that is clear and unambiguous in the civil
context does not become vague merely because it is applied in the crimi-
nal context.
8
The defendant contends that the Appellate Court improperly engrafted
language into §§ 53a-60b (a) (1) and 1-1f (b) when it concluded that a
‘‘physical disability’’ is a condition that ‘‘detrimentally affects one’s ability
to carry out life’s activities . . . .’’ State v. Dojnia, supra, 190 Conn. App.
369. We disagree. It is implicit in the notion of ‘‘physical disability’’ that a
person has a physical condition that detrimentally affects the person’s ability
to function in some manner, and that functional impairment normally is
experienced and measured by the extent to which the condition detrimen-
tally affects the person’s ability to carry out life’s activities.
We express no opinion as to the defendant’s contention that an assault
on a person who wears eyeglasses comes within the ‘‘physically disabled’’
prong of § 53a-60b (a) (1). Although, as the defendant points out, poor
eyesight undoubtedly reflects a functional impairment of a person’s vision
and can detrimentally affect a person’s ability to carry out life’s activities,
we note that the legislature has limited the class of victims with vision
related impairments under the statute to blind persons. See General Statutes
§ 53a-60b (a) (‘‘assault of an elderly, blind, disabled or pregnant person or
a person with intellectual disability’’). In light of this specificity, it would
appear that the defendant’s hypothetical is inapt. See, e.g., Brennan v.
Brennan Associates, 316 Conn. 677, 696, 113 A.3d 957 (2015) (‘‘specific
terms covering the given subject matter will prevail over general language
of the same . . . statute which might otherwise prove controlling’’ (internal
quotation marks omitted)).
9
The court in State v. Allen, supra, 334 N.J. Super. 133, stated that the
criminal statute required the state to prove that ‘‘a reasonable person in the
position of the defendants would be on fair notice that [the victim was]
handicapped.’’ Id., 139. This is because the use of the term ‘‘because of’’ in
the statute ‘‘connotes a causal link between the infliction of injury and bias
motivation . . . .’’ (Internal quotation marks omitted.) Id., 140. In other
words, the defendant must know at the time of the assault that the victim is
handicapped. In the present case, defense counsel conceded at oral argument
before this court that proof of such knowledge is not required under § 53a-
60b (a) (1), thereby abandoning any such claim. Accordingly, we express
no opinion on that issue here. We note, however, that, even if such knowledge
is required, the defendant admitted at trial that she knew that the victim
was disabled. We further note that proof of such knowledge would not be
constitutionally required. Cf. State v. Higgins, 265 Conn. 35, 48, 826 A.2d
1126 (2003) (The statute making murder of a person under the age of sixteen
a capital felony without requiring the state to prove that the defendant knew
the victim’s age ‘‘poses no risk of unfairness to [the defendant]. It is no
snare for the unsuspecting. Although the [defendant] . . . may be surprised
to find that his intended victim [is under the age of sixteen], he nonetheless
knows from the very outset that his planned course of conduct is wrongful.
The situation is not one [in which] legitimate conduct becomes unlawful
solely because of the identity of the [victim]. In a case of this kind the offender
takes his victim as he finds him.’’ (Internal quotation marks omitted.)).
10
To the extent that the defendant contends that § 53a-60b (a) (1) is
unconstitutionally vague because it confers unfettered discretion on prose-
cutors whether to prosecute conduct that clearly falls within its scope, we
disagree. The United States Supreme Court has previously held that,
‘‘[w]ithin the limits set by the legislature’s constitutionally valid definition
of chargeable offenses, the conscious exercise of some selectivity in enforce-
ment is not in itself a federal constitutional violation so long as the selection
was [not] deliberately based [on] an unjustifiable standard such as race,
religion, or other arbitrary classification.’’ (Internal quotation marks omit-
ted.) Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 54 L. Ed. 2d
604 (1978).
11
The concurrence and dissent points out that State v. Higgins, supra,
265 Conn. 69, and United States v. Thornton, supra, 901 F.2d 739–40, involved
equal protection claims, not substantive due process claims, and it questions
whether the overinclusiveness doctrine is applicable outside of the context
of an equal protection claim. We agree that the defendant’s claim in the
present case could have been framed as an equal protection claim. See, e.g.,
id.; State v. Higgins, supra, 69; State v. Mitchell, supra, 757 N.W.2d 439.
Specifically, she could have claimed that it is irrational to treat a ninety
pound woman with no physical disability who assaults a heavyweight boxer
with periodic migraines more harshly than a heavyweight boxer with peri-
odic migraines who assaults a ninety pound woman with no physical disabil-
ity. We disagree, however, that overinclusiveness claims can never implicate
substantive due process principles. It is well established that a statute that
is not rationally related to a legitimate government purpose violates the
right to substantive due process; see, e.g., Dutkiewicz v. Dutkiewicz, 289
Conn. 362, 381, 957 A.2d 821 (2008); and the defendant’s claim in the present
case is that there is no rational nexus between the intent of the legislature,
in enacting the statute, to protect those who have a diminished capacity to
defend themselves or a heightened vulnerability to injury and the application
of the statute to an assault on a person who has neither of those characteris-
tics. See, e.g., State v. Old South Amusements, Inc., 275 Ga. 274, 275, 277–78,
564 S.E.2d 710 (2002) (applying ‘‘substantive due process rational basis
test’’ to claim that statute criminalizing use and possession of video poker
amusement machines was overinclusive); People v. Avila-Briones, 49 N.E.3d
428, 433, 450 (Ill. App. 2015) (applying rational basis review to claim that
sex offender statutory scheme violated substantive due process because it
was overinclusive), appeal denied, 48 N.E.3d 1093 (Ill. 2016).
The concurrence and dissent also relies on authority holding that imper-
fect statutory classifications that are somewhat overinclusive or underinclu-
sive can pass constitutional muster. See, e.g., State Troopers Non-Commis-
sioned Officers Assn. of New Jersey v. New Jersey, 643 F. Supp. 2d 615,
624 (D.N.J. 2009) (‘‘[C]ourts are compelled under [a rational basis] review
to accept a legislature’s generalizations even when there is an imperfect fit
between means and ends. A classification does not fail rational basis review
because it is not made with mathematical nicety or because in practice it
results in some inequality. . . . Thus, the fact that a statute is overinclusive
or [underinclusive], standing alone, does not render the statute constitution-
ally invalid.’’ (Citation omitted; internal quotation marks omitted.)), aff’d,
399 Fed. Appx. 752 (3d Cir. 2010). We conclude that there is a distinction
between the present case and the cases that have applied this principle to
uphold the constitutionality of a statute that creates an imperfect classifica-
tion, such as State v. Higgins, supra, 265 Conn. 61–62, in which the defendant
challenged a statute imposing the death penalty for the murder of a victim
under the age of sixteen, and United States v. Thornton, supra, 901 F.2d
739 and n.1, in which the defendant challenged a federal statute making it
unlawful to distribute a controlled substance within 1000 feet of any school,
college, or university. In Higgins and Thornton, our legislature and Con-
gress, respectively, were faced with a choice of drawing lines that would
inevitably be somewhat arbitrary—in the sense that the lines could be moved
in one direction or the other without significantly undermining the purpose
of the legislation—or drawing no line at all. In such cases, courts will defer
to the legislature’s choice out of necessity. See, e.g., State v. Higgins, supra,
69 (‘‘[t]o invalidate the legislature’s choice, we would either have to hold
that the [l]egislature cannot draw an age line—which would eviscerate any
attempt to include [child murders] within the ambit of the capital murder
statute—or we would have to hold that the line should be drawn elsewhere—
in which case, we would merely be legislating from the bench’’ (internal
quotation marks omitted)).
In the present case, the legislature was not faced with the choice of
drawing an arbitrary line or drawing no line. Indeed, the legislature easily
could have created a classification that was rationally and closely related
to the statute’s purpose, namely, the class of persons who assault persons
with a physical disability that diminishes their ability to defend themselves
or renders them particularly vulnerable to injury. Instead, the statute, as
written, creates a different and much larger class—persons who assault
persons with any physical disability—and the application of the statute to
any member of that class who is not included in the smaller class bears no
rational relation to a legitimate government purpose. We further note that
the gloss that we place on the statute will place no greater burden on
the fact finder than the statute, as written, does. Cf. State Troopers Non-
Commissioned Officers Assn. of New Jersey v. New Jersey, supra, 643 F.
Supp. 2d 632 (rule barring state troopers from practicing law was constitu-
tional even though it was both overinclusive and underinclusive because
defendant state department ‘‘could have determined that the practice of law
[by state employees] presented difficult ethical questions better not decided
on a case-by-case basis’’).
12
Other examples abound. As written, the statute would apply to assaults
on persons suffering from chronic ulcers, eczema, lactose intolerance, tinni-
tus, insomnia, allergies, taste or smelling disorders or growth disorders,
even if these physical disabilities had no effect on the victim’s ability to
defend himself or his vulnerability to injury.
13
If the state chooses not to retry the defendant, then the trial court must
vacate the defendant’s conviction under § 53a-60b (a) (1) and reinstate the
conviction for reckless endangerment in the second degree. See, e.g., State
v. Polanco, supra, 308 Conn. 263.