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STATE v. AYALA—DISSENT
ESPINOSA, J., dissenting. In the present case the
defendant, Enrique Ayala, was convicted of three
counts of interfering with an officer in violation of Gen-
eral Statutes § 53a-167a, in connection with his conduct
in a single criminal transaction that in its entirety lasted
less than one hour, beginning when he intervened in a
motor vehicle stop and ending approximately 1000 feet
away in a holding cell at the Meriden police station.
The question of whether the defendant interfered with
the officers in the holding cell at the police station was
thoroughly addressed by both parties during trial. With
each of its witnesses, the state forcefully and consis-
tently advanced its theory that the defendant’s interfer-
ence with the officers began at the motor vehicle stop
and continued at the police station. Defense counsel
meticulously and effectively attempted to parry the
state’s arguments by presenting the theory that the
defendant cooperated with the police officers during
the entire sequence of events, despite their alleged
assaults on his person. I disagree with the majority,
therefore, that the state’s amended information in any
way deprived the defendant of notice, charged him with
an additional offense or prejudiced him. I conclude, to
the contrary, that the amendment merely conformed
the information to the evidence adduced at trial. I would
hold that the Appellate Court improperly concluded
that the trial court abused its discretion in allowing the
amendment. State v. Ayala, 154 Conn. App. 631, 656,
106 A.3d 941 (2015). Accordingly, I respectfully dissent.
This court has explained that Practice Book § 36-18
‘‘is primarily a notice provision. Its purpose is to ensure
that the defendant has adequate notice of the charges
against which he must defend. State v. Jacobowitz, 182
Conn. 585, 590, 438 A.2d 792 (1981) [overruled in part
on other grounds by State v. Welch, 224 Conn. 1, 4, 615
A.2d 505 (1992)].’’ State v. Tanzella, 226 Conn. 601, 608,
628 A.2d 973 (1993). Specifically, § 36-18 safeguards a
defendant’s sixth amendment right ‘‘to be informed of
the nature and cause of the accusation . . . .’’ U.S.
Const., amend. VI. ‘‘For purposes of § [36-18], [there-
fore] the decisive question is whether the defendant
was informed of the charges with sufficient precision
to be able to prepare an adequate defense.’’ State v.
Tanzella, supra, 608.
The question of whether the information provided
the defendant with sufficient detail to enable him to
prepare an adequate defense is a pragmatic one. The
analysis properly should begin with a review of the
original information and then proceed to an examina-
tion of the record to determine whether the parties
evinced an understanding of the charges that supports
the conclusion of the trial court that the amendment
did not constitute an unfair surprise that deprived the
defendant of notice. That review reveals that the defen-
dant did have sufficient notice of the details of the
charges to enable him to mount a defense.
It is significant that the original information charged
the defendant not only with three counts of interfering
with an officer in violation of § 53a-167a (a), but also
with assault of public safety personnel, specifically a
peace officer, in violation of General Statutes § 53a-
167c (a) (1). As the majority explains, during voir dire,
the prosecutor noticed that the information incorrectly
stated that the assault occurred at the site of the motor
vehicle stop rather than at the police station, and
requested to amend the information to correct the error.
That amendment was allowed without objection from
the defendant and he does not challenge that amend-
ment in this appeal. It is therefore undisputed that the
state was required to prove that the defendant assaulted
a peace officer at the police station. A person is guilty
of assaulting a peace officer when, ‘‘with intent to pre-
vent a reasonably identifiable peace officer . . . from
performing his or her duties, and while such peace
officer . . . is acting in the performance of his or her
duties . . . such person causes physical injury to such
peace officer . . . .’’ (Emphasis added.) General Stat-
utes § 53a-167c (a) (1). A person is guilty of interfering
with an officer when ‘‘such person obstructs, resists
. . . [or] hinders . . . any peace officer . . . in the
performance of such peace officer’s . . . duties.’’ Gen-
eral Statutes § 53a-167a (a). It is readily apparent that
there is substantial overlap between the elements of
both offenses. Most significantly, in order to prove an
assault of a peace officer, it is not sufficient for the
state to prove that the defendant caused physical injury
to the officer—the state must also prove that, in doing
so, the defendant’s intent was to prevent the officer
from performing his or her duties. The information,
therefore, placed the defendant on notice that, in order
to prove an assault against a peace officer, the state
was required to prove that—at the police station—the
defendant acted with an intent to prevent Officer Marga-
ret Smusz—the officer who the defendant allegedly
assaulted—from performing her duty.
Unsurprisingly, in order to prove that the defendant
intended to prevent Smusz from performing her duty,
the state elicited detailed testimony from each of the
three officers involved regarding the defendant’s resis-
tance at the police station, making clear that its theory
was that the defendant interfered with the police offi-
cers during the entire sequence of events, including
those that occurred at the police station. During its
examination of the officers, the state used the video
recording of the events that took place at the police
station, reviewing the video in great detail to support
its theory that the defendant was resisting the officers in
the holding cell. Specifically, the state elicited testimony
from the officers that in the holding cell at the police
station, the defendant physically and verbally resisted
when they tried to remove his motorcycle club vest.
The officers testified that the defendant responded to
their attempts by stating, ‘‘fuck you, pigs,’’ and ‘‘fuck
you, you’re not taking my colors.’’ When the officers
released the defendant from his handcuffs so that they
could remove the vest, rather than keeping his hands
behind his back as ordered, the defendant brought his
arms forward, compelling the officers to contain him
by pinning him against the wall in the corner of the
holding cell. The officers then brought the defendant
to the ground in order to place the handcuffs back on
him. There were four officers on top of the defendant
at that point, but he continued to resist. The defendant
was facedown on the floor, and had locked his hands
under his chest. The officers instructed him to place
his hands behind his back, but the defendant refused
to comply, and was kicking with his feet. Officer David
Buck testified that he attempted unsuccessfully to use
compliance techniques to make the defendant stop
struggling, including pressure point techniques. When
Buck’s efforts failed to force the defendant to comply,
he used a Taser to administer a ‘‘dry stun’’ to the defen-
dant. Despite being stunned by the Taser, the defendant
continued to resist the officers as they tried to place
the handcuffs on him.
Defense counsel did not object to the state’s line of
questioning regarding his resistance to the officers in
the holding cell at the police station as irrelevant, and
instead cross-examined each of the three police officers
at great length regarding whether the defendant com-
plied with the officers’ orders at the police station. For
instance, with respect to the events at the police station,
the majority of defense counsel’s cross-examination of
Buck, rather than targeting the alleged assault, focused
on the alleged acts of interfering. Defense counsel used
the police department video of those events to bring
out the defense theory that, rather than resisting police,
the defendant complied with their instructions.
Throughout the cross-examination of the officers, coun-
sel sought to demonstrate the defense theory that the
defendant’s motions were passive in nature—merely
responses to being moved around by the officers.
Defense counsel painstakingly reviewed the video
with Buck, emphasizing every instance in which the
defendant appeared to be cooperating with the officers.
Counsel began by calling Buck’s attention to the begin-
ning of the video, which showed the cruiser arriving in
the sally port at the police station, and the officers
removing the defendant from the cruiser. After playing
that portion of the video, counsel asked Buck whether
at that point in time it appeared that the defendant was
cooperating. Buck answered in the affirmative. At one
point in the video, it appeared that the defendant was
being led into a room, and then led back out of it.
Defense counsel questioned Buck about that sequence,
asking whether he agreed that the defendant was ‘‘not
resist[ing]’’ at that time. Buck agreed with that charac-
terization. Defense counsel then called attention to the
fact that when the officers brought the defendant into
the holding cell, Officer Shane Phillips kicked the defen-
dant’s legs wide apart. Defense counsel then asked:
‘‘[I]s it safe to say that there is no resistance or problem
at this point?’’ Buck responded that the defendant was
not offering any physical resistance at that time. As the
activity captured on the video further unfolded, defense
counsel asked Buck whether the defendant was comply-
ing as the officers began to remove the defendant’s
clothing. Buck responded in the affirmative. Defense
counsel then elicited testimony from Buck that, when
the officers began to remove the defendant’s handcuffs,
the defendant appeared to be compliant.
Counsel also elicited testimony from Buck that sup-
ported the defense theory that the defendant’s move-
ments, as seen in the video, did not constitute
resistance, and instead were involuntary responses to
being physically handled by the officers. Specifically,
Buck testified on cross-examination that when the offi-
cers spread the defendant’s legs apart, the purpose was
to put him off balance. Counsel also unsuccessfully
attempted to elicit testimony from Buck that, at one
point during the video, the defendant was being pulled
in one direction by one officer and in a different direc-
tion by another officer, suggesting that the officers were
placing him off balance. Defense counsel also asked
Buck whether, when the defendant brought his arms
forward, it was not for the purpose of resisting the
officers, but in order to protect his face from getting
smashed into the stone wall of the holding cell.
Defense counsel also directly challenged some of the
testimony that the state elicited in support of its theory
that the defendant interfered with officers in the holding
cell. For example, Buck had testified that the defendant
crouched down at one point in the holding cell. Defense
counsel called that testimony into question by eliciting
testimony from both Smusz and Phillips to the contrary.
Defense counsel used the video itself to challenge the
officers’ statements that the defendant had swung his
arms, pointing out during questioning that the video
showed that the officers were holding the defendant’s
right arm.
During the direct examination of the defendant,
defense counsel further developed the defense theory
that the defendant did not interfere with the officers
in the holding cell at the police station. In connection
with the events at the station, defense counsel expressly
asked the defendant: ‘‘So you weren’t interfering with
them?’’ (Emphasis added.) The defendant responded
that he was not, because he did not want to provide
the officers with an excuse to physically abuse him.
The defendant’s position was that during the entire
evening, he cooperated with the officers because he
believed that the more compliant he was, the sooner
he would be able to post bond and be released. For
example, the defendant testified that in the holding cell,
he voluntarily assumed a stance with his legs wide apart
and that, when the officers unlocked his handcuffs, he
kept his hands behind his back. He also denied making
any derogatory statements to the officers during this
time. When the officers threw him against the wall, the
defendant said, he ‘‘just stayed there.’’ When Smusz was
going through the defendant’s pockets, he leaned one
way, then another, to make it easier for her to reach
into his pockets. The defendant further testified that
when Buck warned him not to move, the defendant
responded, ‘‘listen, I’m not—I’m not trying to resist.
Officer Phillips is pulling me one way; you’re pulling
me the other way; I can’t go both ways.’’ The defendant
denied objecting to the removal of his vest, and denied
that he resisted when the officers removed the vest.
The defendant’s testimony reiterated the same theory
that the defense had presented in the cross-examination
of the police officers: that his movements were simply
a response to being placed off balance and being pushed
and pulled by the officers. He testified that because he
was placed in a wide-legged stance, at one point he lost
balance, which prompted the officers to pin him into
a corner of the holding cell. He emphasized, however,
that he did not fight with or struggle with the officers
in any way.
The defendant was clearly on notice that he had to
defend against the state’s allegation that he had inter-
fered with the officers during the course of his actions
on the morning of his arrest. The information’s charge
that he assaulted a peace officer at the police station
placed him on notice that he would have to defend
against the allegation that, at the police station, he acted
with an intent to prevent Smusz from performing her
duties. The line of questioning pursued by the state
during the direct examinations of the three police offi-
cers methodically aimed to demonstrate that the defen-
dant interfered with the officers in the holding cell at
the police station. Defense counsel’s questions of those
same witnesses during cross-examination, and his ques-
tions of the defendant during direct examination,
sought to dispute the state’s theory, and to suggest an
alternative interpretation of the defendant’s movements
in the video: that they were passive responses to the
officers’ physical handling of him rather than acts of
interference.
Perhaps the best demonstration that the defendant
was on notice that the evidence presented by the state
in support of its charge that the defendant assaulted
Smusz at the police station also supported the state’s
theory that the defendant interfered with the officers
at the police station was defense counsel’s motion, filed
one day before counsel claimed that the amended infor-
mation was an ‘‘unfair surprise.’’ That motion asked the
court to instruct the jury not to consider that evidence
in connection with the interfering charges. Specifically,
counsel pointed out that the original information did
not state that the interfering conduct occurred both at
the motor vehicle stop and at the police station. Counsel
acknowledged his awareness that the evidence could
support the determination that the defendant had inter-
fered with the officers at the police station, by asserting
that the ‘‘testimony about the defendant’s cooperation
or lack [thereof] while detained at the Meriden Police
Department may confuse the jury as to [whether] the
several counts of interfering with an officer apply to
interfering while being detained at said department
. . . .’’ The following day, the court summarized a prior
off-the-record discussion, noting that the state intended
to argue that the defendant’s interfering conduct that
began at the motor vehicle stop and continued at the
police station constituted a ‘‘continuing course of con-
duct . . . .’’ In light of this sequence of events, the
state’s subsequent amendment to the information rea-
sonably may be read to have sought to conform the
charges to the evidence. State v. Franko, 199 Conn. 481,
492, 508 A.2d 22 (1986).
Because the defendant had notice, he was not preju-
diced by the amendment. Defense counsel’s cross-
examination of the officers was thorough and well exe-
cuted. The defendant’s testimony provided further sup-
port for the defense theory that the video, rather than
demonstrating that the defendant was interfering with
the officers in the holding cell, showed that he was
doing his utmost to comply with their instructions. The
majority cannot point to any avenue of questioning that
the defendant left unexplored. The sole ground upon
which the majority bases its conclusion that the defen-
dant was prejudiced was that he elected to testify. The
majority, however, offers no explanation as to why the
defendant might have made a different decision if the
state had amended the information prior to his testi-
mony, and makes no credible claim that the defendant’s
testimony hurt his case. Instead, rather than providing
even a single detail explaining how the defendant’s testi-
mony caused him any prejudice in light of the amended
information, the majority simply relies on its specula-
tion that the defendant could have decided, in light of
the change, not to testify. The defendant’s testimony
served the purpose of placing the defense theory
squarely in front of the jury. Contrary to the accounts
of the police officers that the defendant had consistently
interfered with them, the defendant testified that he
had been cooperative throughout the entire encounter,
during which he was the victim of repeated assaults,
verbal and physical, by the police officers. His testi-
mony, therefore, asked the members of the jury to view
the sequence of events in an entirely different light.
That testimony, therefore, was a key part of the defense
strategy, both as to the interfering counts and as to the
assault charge.
As I have explained in this dissenting opinion, the
defendant testified extensively regarding the events that
took place at the police station—and that testimony
emphasized the defense theory that I have discussed,
that he was the victim of abusive conduct by the police.
Until the amendment, of course, the defense’s focus on
the events in the police station were related to the
felony assault charge. The amendment to the informa-
tion meant that the very same facts that had been heav-
ily litigated by the parties in connection with a felony
charge now were also relevant to the already existing
misdemeanor charges. The majority hangs its conclu-
sion that the defendant was prejudiced by the amend-
ment on the bizarre notion that the defendant,
undeterred from taking the stand by the prospect of
liability for a felony assault, would have changed his
strategy and not taken the stand because he now faced
liability for misdemeanors in connection with the events
at the station. The majority ignores the fact that the
purpose of Practice Book § 36-18 is to safeguard a
defendant’s right to be provided with notice of the
charges ‘‘with sufficient precision to be able to prepare
an adequate defense.’’ State v. Tanzella, supra, 226
Conn. 608. The amendment did not subject the defen-
dant to any additional criminal liability. That is, no
new counts were added to the information, and the
amendment simply clarified that the state’s theory was
that the defendant interfered with the officers during
the entire course of events, not merely at the motor
vehicle stop.
I also observe that, although the majority suggests
that the defendant might have elected not to testify in
light of the amendment, the majority offers no explana-
tion as to how the defendant’s testimony was not rele-
vant to his theory that he was not interfering with the
officers at the station that night. To the contrary, his
testimony regarding the events at the station, as I have
summarized it here, was entirely consistent with
defense counsel’s cross-examination of the police offi-
cers. He testified that he believed that by cooperating
with the officers and offering no resistance, he would
shorten his ordeal, and that, because of that belief,
he complied. The majority appears to suggest that the
defendant’s testimony during direct examination that
he refused medical treatment somehow undercuts his
claim that he did not interfere with the police officers
in the performance of their duties. That testimony, how-
ever, relates to the defendant’s interactions with an
emergency medical technician, not to any of the three
officers named in the interfering counts.
Defense counsel’s response to the court’s ruling
granting the state’s motion to amend the information
confirms that—despite counsel’s statement that the
amendment constituted an ‘‘unfair surprise’’—the origi-
nal information had provided the defendant with suffi-
cient detail to allow him to mount his defense.
Specifically, after the motion to amend the information
was granted, the defendant did not call any witnesses
back to the stand. If, as the defendant now claims,
he lacked notice that he needed to defend against the
allegation that he interfered with the officers at the
police station, one would think that he would have
needed to recall witnesses in order to question them
regarding that issue. Clearly, defense counsel did not
believe that doing so was necessary. My review of the
transcripts leads me to the same conclusion that
defense counsel apparently arrived at—he already had
asked the witnesses all the relevant questions required
to cast doubt on the state’s claim that the defendant
had interfered with the officers in the holding cell at
the police station.
Because I conclude that the defendant had sufficient
notice that the state’s theory was that the interfering
charges included his conduct at the police station, I
conclude that the trial court did not abuse its discretion
in allowing the amendment. It is therefore unnecessary
for me to consider whether the record demonstrated
good cause1 for the amendment and whether the amend-
ment charged a different or additional offense. State v.
Tanzella, supra, 226 Conn. 608 and n.8. Because I dis-
agree with the majority’s conclusion that the amended
information charged an additional offense, however,
I briefly explain the basis for my disagreement with
that conclusion.2
As I have observed in this dissenting opinion, the
purpose of Practice Book § 36-18 is to protect a defen-
dant’s sixth amendment right ‘‘to be informed of the
nature and cause of the accusation . . . .’’ U.S. Const.,
amend. VI. In light of that overarching purpose, this
court has never rigidly construed the requirement that
an amended information cannot charge an additional
or different offense. Instead, the court has reviewed
amendments with an eye toward determining whether
the original information did not provide the defendant
with notice of the ‘‘nature and cause of the accusation’’
that the state had brought against him. U.S. Const.,
amend. VI. For example, at issue in Tanzella were two
amendments to the original information. State v. Tan-
zella, supra, 226 Conn. 606. First, the information had
charged the defendant with assault in the third degree
in violation of General Statutes § 53a-61 (a) (2), alleging
that he recklessly caused serious physical injury to
another person. That count was amended to reflect that
the state alleged that the defendant intentionally caused
physical injury to another person in violation of § 53a-
61 (a) (1). Id., 607. Second, the original information had
charged the defendant with threatening in violation of
General Statutes (Rev. to 1993) § 53a-62 (a) (2), alleging
that the defendant had threatened to commit a crime
of violence with the intent of terrorizing another or
causing serious public inconvenience. That count was
amended to reflect that the state alleged that the defen-
dant, by physical threat, intentionally placed or
attempted to place another person in fear of imminent
serious physical injury in violation of General Statutes
(Rev. to 1993) § 53a-62 (a) (1). Id. This court recognized
that the amendments changed both the mental state
and the nature of the harm. Id., 613. Because the amend-
ments simply specified ‘‘alternative means of commit-
ting a single crime,’’ however, the court concluded that
they did not charge any additional or different offenses.
Id., 612–13.
In contrast to the amendments in Tanzella, the
amendments to the information in the present case
merely clarify where the acts of interfering occurred.
The amendments do not change the mental state or the
nature of the harm. They do not change the identity of
the officers with respect to whom the defendant was
charged with interfering, and they do not change the
elements of the offense. The amended counts of the
information simply make clear what already had
become obvious from the questioning by both parties
during the trial—that both sides understood the defen-
dant’s interfering conduct to have begun during the
motor vehicle stop and to have continued at the police
station. Accordingly, rather than charging an additional
or different offense, the amended information merely
conformed the charges to the evidence.
The trial court ruled that the defendant’s actions con-
stituted what it referred to as a ‘‘continuing course of
conduct.’’ I understand the court’s use of that phrase,
which I acknowledge does not constitute a legal term
of art in this particular context, to mean that it viewed
the defendant’s conduct at the police station and at
the motor vehicle stop to comprise a single criminal
transaction. That understanding is supported by the
evidence adduced at trial, which revealed that from
start to finish, the defendant’s charged conduct lasted
less than one hour; the motor vehicle stop occurred a
mere 1000 feet from the police station; and, with the
exception of a few pauses in his interfering conduct,
the defendant persisted in his resistance to the police
throughout the encounter. Specifically, the encounter
began shortly after 1 a.m., when Buck initially stopped
the defendant’s girlfriend, Michelle Sofianos, after
observing her making an illegal U-turn near the intersec-
tion of Orange and Hanover Streets in Meriden. At
approximately 1:27 a.m., the cruiser, with the defendant
inside, pulled into the sally port at the nearby police
station. The defendant’s alleged assault, which marked
the end of the defendant’s charged conduct, occurred
approximately fifteen minutes into the video—about
forty-five minutes after Buck stopped Sofianos. During
that time, the defendant interfered with the officers.
The unity of the defendant’s criminal conduct at the
motor vehicle stop and the police station is not changed
by the mere fact that while the defendant was interfer-
ing with the officers, they moved him to a different
location. Nor is that unity defeated because the defen-
dant did not physically resist during every single
moment of those forty-five minutes. It is particularly
significant that when the defendant was physically com-
pliant, he was handcuffed, thereby preventing him from
physically interfering. Of course, handcuffs could not
stop the defendant from verbally interfering with the
officers, and the officers testified that he did so. Phillips
testified that after the defendant had been placed in
handcuffs at the scene of the motor vehicle stop, he
continued to be ‘‘verbally combative.’’ Phillips
explained that the defendant kept displaying ‘‘a lot of
verbal aggression toward us, calling us pigs and using
profanity toward us.’’ Buck testified that in the sally
port, the defendant, who was intoxicated, told the offi-
cers: ‘‘[F]uck you guys. Just leave me the fuck alone.’’
When they brought him to the holding cell, Phillips
testified, the defendant’s ongoing verbal attacks on the
officers continued. When questioned regarding what
the defendant said, Phillips responded, ‘‘more exple-
tives and calling us pigs.’’3 The defendant’s physical
interference resumed almost immediately after they
removed the handcuffs in order to remove his vest, and
he resumed his compliance soon after they placed the
handcuffs back on him. The testimony and evidence
presented at trial, therefore, demonstrated that the
defendant’s interference was ongoing. His conduct at
the police station was part of the same criminal transac-
tion that began at the motor vehicle stop, and the state’s
amended information merely conformed the charges to
the evidence adduced at trial.
I emphasize that the basis for my dissenting opinion
is my conclusion that the original information provided
the defendant with sufficient notice to defend against
the charges. That ability to defend was not affected by
the amendment to the information. He extensively and
thoroughly challenged the state’s position that he inter-
fered with the officers at the police station. The cross-
examination of the police officers, taken together with
the defendant’s testimony, presented a coherent
defense theory, that the defendant was a victim of police
abuse. If he had believed that he was prejudiced by the
amendment, he could have recalled witnesses to the
stand or introduced additional evidence. He did not.
The majority’s decision, by ignoring the fact that the
defendant fully litigated this issue, gives the defendant
a windfall.
For all of the foregoing reasons, I would conclude that
the trial court did not abuse its discretion in allowing the
amendment. Accordingly, I respectfully dissent.
1
I note my agreement with the majority’s acknowledgment that if the
record were to reveal that the state lacked good cause for seeking to amend
the information, that alone would not support a conclusion that the trial
court abused its discretion in allowing the amendment. I further observe,
however, that because the amended information conformed the charges to
the evidence, the record reflects that there was good cause for the amend-
ment. See State v. Franko, supra, 199 Conn. 492. I therefore disagree with
the Appellate Court’s suggestion that in order for the record to establish
good cause, there must have been ‘‘new evidence or evidence that the state
had not anticipated to warrant amending the information at that time.’’ State
v. Ayala, supra, 154 Conn. App. 647.
2
As I have explained, I ground this dissenting opinion on my conclusion
that the original information provided the defendant with sufficient notice
to mount a defense, and discuss the issue of whether the amendment charged
the defendant with an additional offense solely to explain why I disagree
with the majority that it does so.
As for the majority’s claim that the state conceded this issue at oral
argument, however, I disagree. It is at best unclear whether the state con-
ceded this issue. At one point during argument, the state’s attorney was
comparing the present case with State v. Tanzella, supra, 226 Conn. 601.
By contrast to Tanzella, the state’s attorney argued, in the present case,
‘‘we have an added crime . . . and we have different conduct, but [he was]
able to fully defend against that conduct.’’ A few minutes later, however,
the state’s attorney expressed the opposite view. The Chief Justice asked:
‘‘You’re not really disputing that this was an additional offense?’’ The state’s
attorney responded: ‘‘No, absolutely not. . . . It is the same crime, and
what they provided was an additional separate evidentiary basis for the
conviction. You can call it whatever you want.’’ (Emphasis added.) This
response is inconsistent with the majority’s claim that the state conceded
this issue.
3
Because the defendant ceased to physically interfere with the officers
after being placed in handcuffs, the majority incorrectly states that he was
‘‘fully cooperative . . . .’’ See footnote 8 of the majority opinion. The record
demonstrates that the defendant merely adapted. When he was no longer
able to offer physical resistance, he continued to resist the officers in the only
means available to him—verbal interference. The interference was ongoing.