State v. Cicarella ( 2021 )

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STATE OF CONNECTICUT v.
JAMES J. CICARELLA
(AC 42788)
Prescott, Moll and Alexander, Js.
Syllabus
Convicted, on a conditional plea of nolo contendere, of the crime of larceny
in the first degree, the defendant appealed to this court. He claimed
that the trial court improperly denied his motion to dismiss, which
alleged that the prosecution had been instituted improperly. Held that,
because the defendant failed to challenge all of the court’s independent
bases for denying his motion to dismiss, the court was unable to provide
the defendant with any practical relief and, therefore, the appeal was
moot and the court was without subject matter jurisdiction; accordingly,
the appeal was dismissed.
Argued January 19—officially released April 13, 2021
Procedural History
Information charging the defendant with the crime
of larceny in the first degree, brought to the Superior
Court in the judicial district of New Haven, geographical
area number twenty-three, where the court, Alander,
J., denied the defendant’s motion to dismiss; thereafter,
the defendant was presented to the court, Clifford, J.,
on a conditional plea of nolo contendere; judgment of
conviction in accordance with the plea, from which the
defendant appealed to this court. Appeal dismissed.
David V. DeRosa, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Michael R. Denison, assistant state’s
attorney, for the appellee (state).
Opinion
PER CURIAM. The defendant, James J. Cicarella,
appeals from the judgment of conviction rendered by
the trial court following his conditional plea of nolo
contendere1 to larceny in the first degree in violation
of General Statutes § 53a-122 (a) (2). On appeal, the
defendant claims that the court improperly denied his
motion to dismiss filed pursuant to Practice Book § 41-
8 (1)2 in which he claimed that the Madison Police
Department did not have jurisdiction to investigate and
arrest him because the alleged crime occurred in Wall-
ingford. The state disagrees and, in addition, contends
that the appeal is moot. The state argues that the defen-
dant failed to challenge all of the bases for denying
the motion set forth in the court’s memorandum of
decision. We agree with the state, and, because we
cannot afford the defendant any practical relief, we
dismiss his appeal as moot.
The following facts, as set forth in the trial court’s
memorandum of decision, and procedural history are
necessary for the resolution of this appeal. In an affida-
vit attached to an application for an arrest warrant,
Christopher Sudock, a Madison police officer, asserted
that the defendant, a resident of Madison, participated
in a fraudulent scheme resulting in the theft of $578,466
from the victim, Dorothy Minervino. Specifically, the
defendant, who had performed maintenance at the vic-
tim’s residence in Wallingford, falsely informed her that
he had been diagnosed with a life-threatening illness.
At the defendant’s request, the victim agreed to give
the defendant money to pay for his medical insurance
and purported medical procedures. The victim depos-
ited $535,000 into a joint bank account that she had
opened with the defendant, with the understanding that
the money would be used for these medical expenses.
She also deposited $43,000 into the defendant’s per-
sonal account for that same purpose.
Sudock’s affidavit further alleged that the defendant
withdrew funds from these accounts and falsely repre-
sented to the victim that the money had been used for
his medical expenses. The defendant instead used the
money to purchase, inter alia, a house in Madison. The
defendant was charged with larceny in the first degree,
and an arrest warrant was issued on August 1, 2016.
On December 17, 2018, the defendant moved to dis-
miss the information, arguing that the prosecution had
been instituted improperly. The defendant claimed that
‘‘the crime(s) alleged in the warrant submitted by the
Madison Police Department and the state’s long form
information were committed in another jurisdiction,
Wallingford. Consequently, the defendant was not prop-
erly under the jurisdiction of the Madison Police Depart-
ment inasmuch as no crime has been alleged to have
been committed in Madison and as a result, the court
does not have jurisdiction.’’ The state countered that
larceny constituted a continuing crime and that the
subsequent involvement of, and the steps taken by, the
state’s attorney’s office rendered the arrest and prose-
cution of the defendant proper.
The court, Alander, J., held a hearing on January 8,
2019, and issued a memorandum of decision two days
later. In denying the defendant’s motion to dismiss, the
court set forth two bases for its decision. First, the
court, citing State v. Benson, 153 Conn. 209, 218, 214
A.2d 903 (1965), agreed with the state’s argument that
larceny constituted a continuing crime and rejected the
defendant’s efforts to draw a distinction between the
theft of physical property and that of money. Second,
citing State v. Fleming, 198 Conn. 255, 262–63, 502 A.2d
886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L.
Ed. 2d 342 (1986), the court determined that ‘‘[a]ny
investigation by the Madison police of a crime commit-
ted outside their municipality does not invalidate the
defendant’s prosecution.’’
On January 16, 2019, the defendant entered a condi-
tional plea of nolo contendere to the charge of larceny in
the first degree, which the court, Clifford, J., accepted.
Pursuant to General Statutes § 54-94a, the court con-
cluded that a ruling in the defendant’s favor on the
motion to dismiss would be dispositive of the case. See
generally State v. Cervantes, 172 Conn. App. 74, 78, 158
A.3d 430, cert. denied, 325 Conn. 927, 169 A.3d 231(2017). On April 2, 2019, the court imposed a sentence
of twelve years of incarceration, execution suspended
after six years, and five years of probation. This appeal
followed.
On appeal, the defendant claims that the court
improperly denied his motion to dismiss the informa-
tion charging him with the crime of larceny in the first
degree. In support of this claim, he first contends that
the municipal police generally may operate only within
‘‘their territorial jurisdiction.’’ The defendant then
argues that the court improperly concluded that the
larceny of money, as compared to that of ‘‘physical
personal property,’’ constituted a continuing crime.3 As
a second argument, the defendant maintains that ‘‘[t]he
Wallingford police and not the Madison police are the
only authority that have the power to arrest the defen-
dant.’’ Finally, his brief concludes with various policy
arguments as to why we should reverse the decision
of the trial court denying his motion to dismiss.
Absent from the defendant’s appellate brief, however,
is a challenge to the second basis relied on by the trial
court in denying the motion to dismiss, namely, that,
pursuant to State v. Fleming, supra, 198 Conn. 255, an
illegal arrest does not invalidate his prosecution and
subsequent conviction. In Fleming, our Supreme Court
stated: ‘‘The relationship between an illegal arrest and
a subsequent prosecution under federal constitutional
law is well settled. In an unbroken line of cases dating
back to 1886, the federal rule has been that an illegal
arrest will not bar a subsequent prosecution or void a
resulting conviction.’’ Id., 259; see also State v. Johnson,
227 Conn. 534, 539–40, 630 A.2d 1059 (1993); State v.
Bagnaschi, 180 Conn. App. 835, 857, 184 A.3d 1234,
cert. denied, 329 Conn. 912, 186 A.3d 1170 (2018).4 The
defendant’s failure to challenge this independent basis
for the denial of his motion to dismiss renders his appeal
moot, as we cannot afford him any practical relief.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . . The
fundamental principles underpinning the mootness doc-
trine are well settled. We begin with the four part test
for justiciability . . . . Because courts are established
to resolve actual controversies, before a claimed con-
troversy is entitled to a resolution on the merits it must
be justiciable. Justiciability requires (1) that there be
an actual controversy between or among the parties to
the dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by the judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant. . . .
‘‘[I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way. . . .
‘‘Where an appellant fails to challenge all bases for
a trial court’s adverse ruling on his claim, even if this
court were to agree with the appellant on the issues
that he does raise, we still would not be able to provide
[him] any relief in light of the binding adverse finding[s]
[not raised] with respect to those claims. . . . There-
fore, when an appellant challenges a trial court’s
adverse ruling, but does not challenge all independent
bases for that ruling, the appeal is moot.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Lester, 324 Conn. 519, 526–27, 153
A.3d 647 (2017); see also Sobel v. Commissioner of
Revenue Services, 333 Conn. 712, 716–17, 218 A.3d 581(2019); In re Phoenix A., 202 Conn. App. 827, 838–40,
A.3d (2021); State v. Carter, 194 Conn. App.
202, 206–208, 220 A.3d 882 (2019); State v. Holley, 174
Conn. App. 488, 503–507, 167 A.3d 1000, cert. denied,
327 Conn. 907, 170 A.3d 3 (2017), cert. denied, U.S.
, 138 S. Ct. 1012, 200 L. Ed. 2d 275 (2018).
Here, the defendant failed to challenge the court’s
independent basis for denying his motion to dismiss
that, pursuant to State v. Fleming, supra, 198 Conn.
255, an illegal arrest does not invalidate his prosecution
and subsequent conviction.5 In his brief, the defendant
first argued that the court erred in its finding that the
Madison Police Department had the authority to investi-
gate this crime and in its determination that larceny of
money, as opposed to larceny of physical property, is
a continuing crime such that each municipality where
the money is spent has jurisdiction to arrest the defen-
dant. Second, he contended that, even if the investiga-
tion by the Madison Police Department was proper, the
correct course of action was to dismiss the case and,
‘‘if the [state’s] attorney in coordination with [the] Wall-
ingford Police Department [commences] a new case
and it is within the statute of limitations, then proceed
on the new arrest.’’ Accordingly, as a result of the defen-
dant’s failure to challenge all of the court’s bases for
denying his motion to dismiss, we cannot afford him
any practical relief, rendering this appeal moot and
leaving this court without subject matter jurisdiction.
The appeal is dismissed.
1
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere condi-
tional on the right to take an appeal from the court’s denial of the defendant’s
. . . motion to dismiss, the defendant after the imposition of sentence may
file an appeal within the time prescribed by law provided a trial court has
determined that a ruling on such . . . motion to dismiss would be disposi-
tive of the case. The issue to be considered in such an appeal shall be
limited to whether it was proper for the court to have denied . . . the
motion to dismiss. A plea of nolo contendere by a defendant under this
section shall not constitute a waiver by the defendant of nonjurisdictional
defects in the criminal prosecution.’’
2
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial of the general issue,
shall, if made prior to trial, be raised by a motion to dismiss the information:
(1) Defects in the institution of the prosecution . . . .’’
3
Specifically, the defendant set forth the following: ‘‘There is, however,
a meaningful distinction in larceny by false pretenses with regards to money
and larceny of personal property as to the impact that [the crime] has on
[municipal] power and jurisdiction as defined by the Connecticut legislature.
First, the whole concept of the municipal police jurisdiction as set forth in
statute would suddenly be meaningless when money is involved because a
complainant could trace any place where the funds were spent by [the
person alleged to have committed the larceny], and convince that police
department that . . . he should be arrested and incarcerated for a larceny.’’
4
In State v. Ostroski, 201 Conn. 534, 555, 518 A.2d 915 (1986), our Supreme
Court noted: ‘‘We specifically excluded from our holding [in State v. Fleming,
supra, 198 Conn. 262–63] . . . cases . . . where the fairness of the defen-
dant’s trial is compromised by the circumstances of his arrest. . . . [A]n
illegal arrest may impair the fairness of a subsequent prosecution only where
evidence obtained as a direct consequence of that arrest is admitted against
the defendant at trial.’’ (Citation omitted; internal quotation marks omitted.)
See also State v. Ryerson, 201 Conn. 333, 338, 514 A.2d 337 (1986). This
exception to the rule established in State v. Fleming, supra, 262–63, does
not apply in the present case.
5
At oral argument before this court, the defendant claimed, for the first
time, that the trial court’s reliance on State v. Fleming, supra, 198 Conn.
App. 255, was misplaced. ‘‘Appellate courts generally do not consider claims
raised for the first time at oral argument. See State v. Wright, 197 Conn.
588, 595, 500 A.2d 547 (1985); see also State v. Holmes, 70 Conn. App. 4, 5
n.2, 796 A.2d 561 (2002).’’ State v. Marcelino S., 118 Conn. App. 589, 592
n.4, 984 A.2d 1148 (2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010);
see also State v. Butler, 296 Conn. 62, 70 n.10, 993 A.2d 970 (2010) (appellate
claims must be briefed adequately and cannot be raised for first time at
oral argument).