State v. Njoku ( 2021 )

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STATE OF CONNECTICUT v. EDWIN NJOKU
(AC 42308)
Lavine, Elgo and Palmer, Js.*
Syllabus
Convicted of the crimes of sexual assault in the fourth degree and of tamper-
ing with a witness, the defendant appealed to this court, claiming that
the trial court improperly denied his motion to modify the terms and
conditions of his probation because the conditions were overbroad and
not reasonably related to his crimes, did not satisfy the purposes of
probation and violated his free speech rights. Held:
1. This court declined to review the defendant’s claim that the trial court
abused its discretion by denying his motion to modify the probationary
condition that he not have an authoritative position over females or
access to their personal information because no cognizable dispute
existed; the court found that the defendant did not demonstrate the
deprivation he alleged, and the defendant did not challenge those find-
ings on appeal.
2. This court declined to review the defendant’s claim that the trial court
abused its discretion by denying his motion to modify the probationary
condition barring him from the use of social media of any kind because
his objection to the condition was premature and speculative and it
lacked a factual basis; the court found that the defendant had not submit-
ted any specific requests to the Office of Adult Probation for an exception
to use social media for business related purposes and that that office
had expressed a willingness to consider exceptions to the condition if
the defendant followed the procedures outlined in the conditions of
his probation.
Submitted on briefs October 6, 2020—officially released February 2, 2021
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, sexual
assault in the fourth degree and tampering with a wit-
ness, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the jury before Vitale, J.;
verdict and judgment of guilty of sexual assault in the
fourth degree and tampering with a witness; thereafter,
the court denied the defendant’s motion to modify the
conditions of his probation, and the defendant appealed
to this court. Affirmed.
Edwin Njoku, self-represented, filed a brief as the
appellant (defendant).
Samantha L. Oden, deputy assistant state’s attorney,
Gail P. Hardy, former state’s attorney, and Vicki Mel-
chiorre, supervisory assistant state’s attorney, filed a
brief for the appellee (state).
Opinion
LAVINE, J. The defendant, Edwin Njoku, appeals
from the judgment of the trial court denying his motion
to modify the conditions of his probation under General
Statutes § 53a-30 (c). On appeal, the defendant claims
that the trial court abused its discretion in refusing to
modify his probationary conditions with respect to his
job related activity and use of social media. We affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In 2013, the defendant, formerly a
licensed physician, was found guilty by a jury of fourth
degree sexual assault of a patient in his medical office
and of tampering with a witness. The court accepted
the jury’s verdict and imposed a total effective sentence
of ten years of imprisonment, execution suspended
after five years, with five years of probation consecutive
to the ten year term of imprisonment. On December 8,
2017, the defendant was released from prison and began
serving his period of probation.
At the time of sentencing, the trial court imposed
the following special conditions of probation on the
defendant: (1) have no contact by person, phone, mail,
or any other means, including social media, directly or
indirectly with the victim of his sexual assault and her
family, (2) partake in sex offender evaluation as deemed
necessary by his probation officer and sex offender
treatment provider, (3) obtain approval of all employ-
ment from his probation officer and sex offender treat-
ment provider, (4) do not engage in employment that
places him in a position of authority over females or
grants access to their personal information, (5) abide
by sex offender conditions required by law, and (6) do
not engage in the practice of medicine during the time
his medical license is suspended. The defendant also
signed a computer access agreement (agreement) as a
condition of his probation. The agreement, in relevant
part, required the defendant to refrain entirely from
using social media ‘‘of any kind.’’1 Thereafter, on August
23, 2018, the defendant’s probation officer, Kellie DeCa-
pua, imposed an additional condition that he have no
contact with former female patients.
On September 4, 2018, the defendant filed a ‘‘Motion
to Clarify and/or Modify Special Order of Probation,’’2
pursuant to § 53a-30 (c),3 challenging two of the court
imposed conditions of probation, namely (1) the condi-
tion that he have no employment in which he has author-
ity over females or have access to their personal infor-
mation, and (2) the condition that he not access social
media of any kind.4 The court heard arguments on the
motion to modify over two days, November 6 and 19,
2018. The court addressed the defendant’s claims indi-
vidually on separate days.
On November 6, 2018, the defendant challenged
DeCapua’s construction of the condition that he not be
in a position of authority over females or have access
to their personal information. The defendant character-
ized DeCapua’s construction of that condition as pro-
hibiting him from (a) acting as a landlord, by barring
him from entering into lease agreements with potential
tenants, collecting rent from tenants, and performing
any maintenance or cleaning, or mowing lawns, on his
properties, and (b) engaging in any economic activity
of his own, either as part owner or as an investor in a
business, given the likelihood that he would be in a
position of authority over females as well as males. In
his motion, he challenged the propriety of the condi-
tions imposed on him on the grounds that they lacked
a nexus to the crimes of which he was convicted,
detracted from the state’s probation goal of rehabilita-
tion, and were cruel and unusual in violation of the
eighth amendment to the United States constitution.
He also argued that DeCapua violated his due process
rights by consulting the Office of the State’s Attorney
to clarify whether the business plan he had submitted
to her conformed to his probation conditions and then
prohibiting him from pursuing that plan without
affording him a hearing.
The court rejected the defendant’s claims, crediting
DeCapua’s testimony that she had not banned the defen-
dant from all employment.5 The court found, rather,
that DeCapua had permitted the defendant to proceed
with his described business plan as long as he provided
the Office of Adult Probation with the required
paperwork. The court also found that the defendant had
acknowledged that he was required to have a property
manager to handle his affairs as a landlord in order that
he not come in unpermitted contact with females. The
court therefore denied the motion with regard to
employment, finding that the defendant agreed that the
challenged conditions were proper.
On November 19, 2018, the defendant challenged the
condition of probation restricting him from using social
media. He argued that that condition was unduly restric-
tive, and therefore unlawful, because there was no rea-
sonable relationship between the crimes of which he
had been convicted, which occurred in a medical office,
and the broad prohibition against his use of social
media. The defendant argued that a valid condition of
probation requires a nexus between the condition and
the crime for which it was imposed, because § 53a-30 (a)
(17) requires that the condition be reasonably related
to his rehabilitation. The defendant further argued that
a blanket ban on the use of social media was unconstitu-
tional under Packingham v. North Carolina, U.S.
, 137 S. Ct. 1730, 1737, 198 L. Ed. 2d 273 (2017), in
which the United States Supreme Court struck down,
on first amendment grounds, a statute making it a felony
for registered sex offenders to access a wide variety of
social media websites.
The court rejected the defendant’s argument, citing
the wide discretion given to the Office of Adult Proba-
tion to impose conditions in the interest of protecting
public safety and the fact that the defendant was still
serving his sentence. The court further found that the
social media sites to which the defendant wants access
‘‘are not currently in controversy’’ because he had either
failed to make requests for access to DeCapua, or had
failed to demonstrate that he had been prevented from
their use. The court also found that, in any event, the
conditions of the agreement the defendant signed for
his sex offender treatment6 entirely prohibited the use
of social media. In fact, the court found that the defen-
dant had been using social media to contact his former
patients while he was on probation. The court denied
the defendant’s motion to modify on the grounds that
the defendant had not presented a controversy that the
court could properly resolve at that time, and that,
in any case, the defendant’s sex offender treatment
provider did not permit him to use social media and
public safety interests supported the condition. This
appeal followed.
The defendant claims on appeal that the trial court’s
denial of his motion to modify the conditions of his
probation was improper, because the conditions were
overbroad and lacked a ‘‘direct nexus’’ to the crimes
of which he had been convicted, did not satisfy the
purposes of probation, and violated his free speech
rights. We do not agree.
The standard of review for the denial of a motion to
modify probation is well established. ‘‘Probation is the
product of statute. . . . Statutes authorizing proba-
tion, while setting parameters for doing so, have been
very often construed to give the court broad discretion
in imposing conditions. . . . Section 53a-30 (c) autho-
rizes a court to modify the terms of probation for good
cause. . . . It is well settled that the denial of a motion
to modify probation will be upheld so long as the trial
court did not abuse its discretion. . . . On appeal, a
defendant bears a heavy burden because every reason-
able presumption should be given in favor of the cor-
rectness of the court’s ruling. . . . The mere fact that
the denial of a motion to modify probation leaves a
defendant facing a lengthy probationary period with
strict conditions is not an abuse of discretion. Rather,
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Citations omitted; internal quotation marks
omitted.) State v. Baldwin, 183 Conn. App. 167, 174–75,
191 A.3d 1096, cert. denied, 330 Conn. 922, 194 A.3d
288 (2018).
Section 53a-30 (a) (17) provides in relevant part:
‘‘When imposing sentence of probation . . . the court
may, as a condition of the sentence, order that the
defendant . . . satisfy any other conditions reasonably
related to the defendant’s rehabilitation. . . .’’ Section
53a-30 (b) additionally ‘‘expressly allows the [O]ffice
of [A]dult [P]robation to impose reasonable conditions
on probation.’’ State v. Thorp, 57 Conn. App. 112, 116,
747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d
162 (2000). ‘‘[I]n determining whether a condition of
probation [is proper] a reviewing court should evaluate
the condition imposed under our Adult Probation Act
in the following context: The conditions must be reason-
ably related to the purposes of the [Adult Probation]
Act.’’ (Internal quotation marks omitted.) State v.
Crouch, 105 Conn. App. 693, 698, 939 A.2d 632 (2008).
I
The defendant first claims that the trial court abused
its discretion by denying his motion to modify the proba-
tionary condition that he not have an authoritative posi-
tion over females or access to their personal informa-
tion. He argues that the condition was overbroad and
not reasonably related to the crimes of which he was
convicted or the purposes probation serves. We decline
to review his claim because no cognizable dispute
existed for the trial court or this court to address.
The following additional facts are relevant to this
issue. At the hearing, the defendant claimed that DeCa-
pua had prohibited him from pursuing a diagnostic test-
ing laboratory business he was planning to start, which
he described to the court as compliant with the condi-
tion that he not be in a position of authority over females
or have access to their personal information. The defen-
dant attested to the court that his business partners
would be in charge of all employee related aspects of
the business and that he would form a separate limited
liability company and focus on marketing. He would
be insulated from all employee records and would not
be in a supervisory decision-making capacity regarding
employees. DeCapua testified that the defendant had
never previously proposed an employment solution that
conformed to the condition that he not be in a position
of authority over female employees. Rather, he had
failed to disclose his prospective business partners, had
told her that he wished to be ‘‘in charge,’’ and had taken
the position that he would comply by not hiring women
at all, which DeCapua considered untenable in light of
federal antidiscrimination law. The court found DeCa-
pua’s position to be that she had rejected the defen-
dant’s then proposed business plan only because it did
not comply with the defendant’s conditions of probation
at the time he presented it to her. She had never taken
the position that the conditions of the defendant’s pro-
bation prohibited him from starting a business of his
own. The Office of Adult Probation was not opposed
to the defendant investing in a business as long as (a)
his participation in the business complied with the con-
ditions of his probation, and (b) he fully documented
his compliance with the conditions of probation for
probation office verification by supplying any relevant
paperwork concerning the business’s structure,
employees, and his role, such as the business’s
operating agreement. The court credited DeCapua’s tes-
timony in making those findings. With respect to the
defendant’s activity as a landlord, the court found that
he had conceded the necessity of having a property
manager to collect rents, manage leases, interact with
tenants, and maintain apartments in order to comply
with the condition of probation limiting his contact
with females.7
At trial and on appeal, the defendant has mischarac-
terized the conditions of probation imposed on him.
The defendant contended at trial that DeCapua had
prohibited him from starting a business. On appeal, he
continues to characterize the condition as a complete
bar on ‘‘start[ing] or invest[ing] in any business.’’ The
court expressly credited DeCapua’s testimony that she
had not taken that position and that the Office of Adult
Probation would permit the defendant to pursue a busi-
ness venture, as long as he fully complied with his
probationary conditions and provided documentation
of how his venture was structured.8 We defer to the
trial court’s determination of credibility, and we thus
reject the defendant’s characterization of the nature
and extent of the condition imposed on him by DeCa-
pua. See State v. Joseph, 194 Conn. App. 684, 689, 222
A.3d 137 (2019) (‘‘It is the [fact finder] . . . [who has]
an opportunity to observe the demeanor of the wit-
nesses and the parties; thus [the fact finder] is best able
to judge the credibility of the witnesses and to draw
necessary inferences therefrom. . . . As a practical
matter, it is inappropriate to assess credibility without
having watched a witness testify, because the
demeanor, conduct and other factors are not fully
reflected in the cold, printed record.’’ (Internal quota-
tion marks omitted.)), cert. denied, 334 Conn. 915, 221
A.3d 809 (2020). The court also stated that the defendant
was not, in fact, prevented from carrying on his business
as a landlord, provided that he utilized a property man-
ager to handle his affairs. Thus, no dispute existed for
the court to review given its finding that the defendant
had not demonstrated the deprivation he alleged. The
defendant has not challenged those findings of the trial
court with respect to the condition’s application. We
thus reject the defendant’s characterization of the
nature and extent of the condition imposed on him by
DeCapua. Because our conclusion on this point resolves
the issue presented by the defendant, we need not reach
the legal merits of his claim.9
II
The defendant next claims that the trial court abused
its discretion by denying his motion to modify the condi-
tions of his probation relating to social media. He claims
that the condition barring him from the use of social
media was overbroad, was not reasonably related to
the crime for which he was convicted, was imposed
beyond the power of the probation office, and was
unconstitutional. We do not agree.
The following additional facts are relevant to this
issue. The court asked the defendant to clearly articu-
late the scope of his social media access request. The
defendant testified that he wanted to use Snapchat to
communicate with his mother and Facebook and
LinkedIn for advertising and other business related pur-
poses.10 He stated that, apart from communicating with
his mother, his primary purpose in seeking social media
access was for business related advertising purposes.
He, however, testified that he had discussed Snapchat
with DeCapua and she had been ‘‘reasonable.’’11 The
court found that Snapchat was not at issue. The defen-
dant further admitted that he had not made any requests
to DeCapua regarding the use of Facebook or LinkedIn
for advertising. The court found that the defendant’s
request to access Facebook and LinkedIn was not an
issue for the court because the defendant had not yet
raised the question with DeCapua. DeCapua indicated
to the court that there may be an avenue for the defen-
dant to make requests regarding advertising. The court
concluded that ‘‘as it turns out according to probation
. . . you would have permission potentially to use
social media for business purposes as long as you com-
ply with making a request in writing and setting forth
the basis for which you’d be using it for business pur-
poses and the business model for which it would be
used through. If that was done, they’d be able to work
with you.’’12 The court denied the motion with respect
to the defendant’s social media claims.
Our review of the record in the trial court reveals that
the defendant’s objection to the probationary condition
placed on him is premature, speculative, and lacking a
factual basis. The trial court found that the defendant
had not submitted any specific requests to the Office
of Adult Probation for an exception for him to use social
media for business advertising purposes. The court fur-
ther found that the Office of Adult Probation expressed
a willingness to consider accommodating the defendant
in that respect. Thus, we conclude that we need not
reach the defendant’s legal claims, including his first
amendment argument.13
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The agreement contained nineteen conditions. The final condition, that
the defendant refrain from using social media ‘‘of any kind,’’ was inserted in
handwriting by the probation office as an additional condition under ‘‘Other.’’
2
We agree with the state that this motion is best characterized as a motion
to modify the conditions of probation. ‘‘Motions for clarification may not
. . . be used to modify or to alter the substantive terms of a prior judgment
. . . and we look to the substance of the relief sought by the motion rather
than the form to determine whether a motion is properly characterized as
one seeking a clarification or a modification.’’ (Internal quotation marks
omitted.) State v. Denya, 294 Conn. 516, 528–29, 986 A.2d 260 (2010). The
defendant challenged the propriety of the conditions of probation, citing
§ 53a-30 and asserting that the terms of his probation were improperly
imposed.
3
General Statutes § 53a-30 (c) provides: ‘‘At any time during the period
of probation or conditional discharge, after hearing and for good cause
shown, the court may modify or enlarge the conditions, whether originally
imposed by the court under this section or otherwise, and may extend the
period, provided the original period with any extensions shall not exceed
the periods authorized by section 53a-29. The court shall cause a copy of
any such order to be delivered to the defendant and to the probation officer,
if any.’’
4
DeCapua filed a letter with the court in response to the defendant’s
motion the following day, on September 5, 2018, explaining her enforcement
of the conditions of probation at issue and contesting the defendant’s charac-
terization of the facts.
5
At the conclusion of the first day, the court asked the defendant if there
was any need for a ruling given that, during the hearing, the defendant had
described a probation compliant business plan to the court and had conceded
that he needed to have a property manager in order to comply with his
probationary terms. The defendant maintained his position that DeCapua
had told him he could not ‘‘engage in any of these things’’ or ‘‘start a business.’’
The court found DeCapua’s testimony credible, and thus determined that
the defendant had not demonstrated that the Office of Adult Probation had
overreached in any way. See part I of this opinion.
6
DeCapua testified that the defendant had signed a standard agreement
with his sex offender treatment provider, the Connecticut Association for
the Treatment of Sex Offenders, which broadly prohibited him from
accessing social media, due to general concerns about public safety given
the anonymity inherent in social media.
7
The defendant argued that it was financially burdensome to continue
paying his current property manager but acknowledged that he was subject
to that requirement.
8
The defendant claims that the trial court ‘‘agreed’’ with the Office of Adult
Probation that the defendant should be barred from owning or investing in
any business where he might obtain the personal information of females.
To the contrary, the trial court explicitly agreed with DeCapua that the
defendant could own or invest in a business, provided he was insulated
from access to the personal information of females.
9
We note that the defendant has raised a claim that his due process
rights were violated when DeCapua consulted with the Office of the State’s
Attorney to confirm her interpretation that the defendant’s then proposed
business plan and landlord activity did not comply with the conditions of
his probation. He claims that the Adult Probation Act is a ‘‘creation of
statute’’ and the statute ‘‘did not explicitly or implicitly authorize [the Office
of Adult Probation] to consult the [Office of the State’s Attorney], [which]
prosecuted the case, to resolve issues of ambiguity . . . . This is to be
addressed by the courts, [which] have broad discretion to do so.’’ This claim
is meritless. ‘‘[I]f an individual on probation believes that the [O]ffice of
[A]dult [P]robation imposed an unreasonable condition, he may request a
hearing pursuant to . . . § 53a-30 (c).’’ State v. Smith, 255 Conn. 830, 840,
769 A.2d 698 (2001). In the present case, the defendant requested and
received a hearing before the court.
10
Facebook and LinkedIn are commonly used social media platforms, the
latter of which focuses primarily on networking in the employment sphere.
Snapchat is a widely used mobile application that allows users to text and
send pictures and videos.
11
After the defendant testified that he wished to use Snapchat to communi-
cate with his mother, the court asked the defendant, ‘‘You told me you
mentioned Snapchat, but you worked out some sort of an agreement about
the Snapchat with your mother, right?’’ The defendant responded, ‘‘That’s
correct.’’
12
The court did credit DeCapua’s testimony and find that the defendant’s
sex offender treatment agreement with the Connecticut Association for the
Treatment of Sex Offenders did not permit him to use social media. The
court, however, also credited DeCapua’s subsequent testimony concerning
the possibility that she would entertain an advertising related request from
the defendant. The court found, following her testimony, that the defendant’s
advertising request could be accommodated provided he submitted a written
request, pursuant to the court’s earlier findings made at the November 6,
2018 hearing.
13
We understand, of course, that any limitation on free expression, includ-
ing the ability to gather information in the Internet age, must be scrupulously
evaluated in light of first amendment concerns. ‘‘The forces and directions
of the Internet are so new, so protean, and so far reaching that courts
must be conscious that what they say today might be obsolete tomorrow.’’
Packingham v. North Carolina, supra, 137 S. Ct. 1736. But we also agree
with Justice Kennedy’s observation that ‘‘the [f]irst [a]mendment permits
[states] to enact specific, narrowly tailored laws that prohibit a sex offender
from engaging in conduct that often presages a sexual crime . . . .’’ Id.,
1737.