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STATE OF CONNECTICUT v. HAJI
JHMALAH BISCHOFF
(AC 39336)
Sheldon, Elgo and Bright, Js.
Syllabus
Convicted of the crimes of possession of narcotics ([Rev. to 2013] § 21a-279)
and possession of less than four ounces of a cannabis-type substance,
the defendant appealed to this court, claiming, inter alia, that the evi-
dence was insufficient to support his conviction of possession of narcot-
ics and that the trial court improperly failed to instruct the jury on third-
party culpability in accordance with his request to charge. The police
had conducted surveillance of a motel for several months during which
they saw the defendant go into the motel and into a certain room in
the motel. Pursuant to a search warrant, the police entered the room,
where they found the defendant and L, and recovered, inter alia, currency
and $10 packets of narcotics that were on a television stand. The police
also found men’s clothing in the room that could have fit the defendant
but not L. L also was arrested and subsequently entered a plea to certain
charges against him in connection with the incident. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of possession of narcotics, which
was based on his assertion that the state failed to prove that he had
actual or constructive possession of the narcotics: the jury reasonably
could have determined from the evidence presented and the inferences
reasonably drawn therefrom that the defendant knew of the presence
and narcotic character of the narcotics in the motel room, and that the
defendant, as the person who frequented the room and kept clothing
there, was the person who exercised control over the room and its
contents, including the recovered narcotics, and such evidence was
sufficient to sustain the jury’s finding beyond a reasonable doubt that
the defendant constructively possessed the narcotics; moreover, the
jury could have inferred a consciousness of guilt on the defendant’s
part from his conduct in seeking to distance himself from the $10 packets
of narcotics by running from them when the police entered the room
and by throwing into the bathtub several bills in denominations that
generally are used to purchase narcotics.
2. The trial court properly denied the defendant’s request to instruct the
jury on third-party culpability, there having been no evidence presented
that connected L to the motel room or to the narcotics found there;
there was no evidence presented showing that L possessed the narcotics,
as neither the transcript of L’s plea proceeding nor the certified disposi-
tion of his case was admitted into evidence, there was no heroin or
cocaine in a bag of marijuana that L was sitting on when the police
entered the motel room, L had not been seen by the police officers who
surveilled the area of the motel or elsewhere prior to the incident at
issue, and the clothing found in the motel room would not have fit L,
and because there was no evidence presented to the jury that L possessed
the narcotics in the motel room, to the exclusion of the defendant, an
instruction on third-party culpability was not required.
3. The defendant could not prevail on his claim that he was entitled to
resentencing on his conviction of possession of narcotics, which was
based on his claim that the legislature, in 2015, retroactively reclassified
a violation of § 21a-279 and reduced the penalty for a first offense to a
class A misdemeanor that carries a maximum sentence of one year
of incarceration; this court previously has determined that the 2015
amendment to § 21a-279 (a) does not apply retroactively, and that deter-
mination was dispositive of the defendant’s claim.
Argued March 6—officially released June 12, 2018
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of possession of narcotics
with intent to sell by a person who is not drug-depen-
dent, possession of narcotics with intent to sell and
possession of narcotics, and with the crime of posses-
sion of less than four ounces of a cannabis-type sub-
stance, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two, and
tried to the jury before Dennis, J.; verdict and judgment
of guilty of possession of less than four ounces of a
cannabis-type substance and two counts of possession
of narcotics, from which the defendant appealed to this
court. Affirmed.
James B. Streeto, senior assistant public defender,
with whom were Conor J. McLaughlin, certified legal
intern, and, on the brief, Emily H. Wagner, assistant
public defender, for the appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, Craig P. Nowak, senior state’s attorney, and Merav
Knafo, certified legal intern, for the appellee (state).
Opinion
SHELDON, J. The defendant, Haji Jhmalah Bischoff,
appeals from the judgment of conviction, rendered
against him after a jury trial in the judicial district of
Fairfield, on charges of possession of narcotics in viola-
tion of General Statutes (Rev. to 2013) § 21a-279 (a)
and possession of less than four ounces of a cannabis-
type substance (marijuana) in violation of General Stat-
utes (Rev. to 2013) § 21a-279 (c). The defendant claims
that (1) the evidence presented at trial was insufficient
to support his conviction of possession of narcotics;
(2) the trial court erred in failing to instruct the jury,
as he requested, on third-party culpability as a defense
to possession of narcotics; and (3) if his conviction of
possession of narcotics is upheld, this case must be
remanded for resentencing because his seven year sen-
tence on that offense exceeds the one year statutory
maximum for that offense, as it was retroactively reclas-
sified after his arrest but before his conviction and
sentencing in this case.1 We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In July, 2014, the narcotics unit of the Stratford
Police Department began to investigate the defendant.
Over the next three months, officers surveilling the
defendant observed him enter and exit the Honeyspot
Motor Lodge in Stratford (motel) several times, and
saw him enter room 208 of the motel on at least five
or six of those occasions.2
On the morning of October 21, 2014, Sergeant Shaun
Martinez went to the motel with a search warrant for
room 208 and an arrest warrant for the defendant. At
some point between noon and 1 p.m. on that day, while
Martinez was waiting outside of the motel for the defen-
dant to arrive, he saw the defendant exit a vehicle,
together with one male and three or four female com-
panions, and enter the motel. Thereafter, Martinez and
several detectives from the Milford Police Department
used a ram to break open the door of room 208. Upon
entering the room—which the officers described as a
small room, where ‘‘[e]verything is within a hop’’—Mar-
tinez saw the defendant, who was initially standing in
front of the two open cabinet doors of a television stand
(TV stand), run into the bathroom. Martinez followed
the defendant into the bathroom, and ‘‘tackled [him]
onto the floor and took him into custody’’ after seeing
him throw four $10 bills into the bathtub. When Marti-
nez later searched the defendant’s person, he found a
small quantity of marijuana and a $10 or a $20 bill in
his pocket.
When Martinez and his fellow officers first entered
the room, they saw the other male who had entered
the motel with the defendant, whom they later identified
as Nevin Lowe, sitting in a chair approximately four to
six feet from the TV stand near which the defendant
was standing. Lowe did not move from the chair until
he was directed to do so by the officers conducting the
search of the motel room. None of the officers who
had been surveilling the defendant since July had ever
seen Lowe, at the motel or elsewhere, prior to October
21, 2014.
After the defendant, Lowe and four women were
removed from the room, Detectives Jonathan Policano
and Jason Creatore, of the Stratford Police Department,
who had been surveilling the motel from a school park-
ing lot across the street, were called into the room to
photograph it and take custody of the evidence that
had been found there during the search. On top of
the TV stand, they recovered an Altoids tin containing
several yellow folds of heroin and thirteen small, clear
Ziploc baggies and one blue baggie containing crack
cocaine, in addition to $36 in United States currency
and ‘‘several prescription pills, narcotic pills.’’ Each of
the folds and baggies was packed with $10 or $20 worth
of heroin or crack cocaine. The officers also seized four
cell phones from the dresser located ‘‘just beneath the
TV . . . .’’
From the chair on which Lowe had been sitting, the
officers seized what Martinez described during his testi-
mony as a ‘‘plastic baggie with several smaller plastic
baggies that are used for packaging street level narcot-
ics. Crack cocaine, specifically. There’s also a baggie
of marijuana, suspected marijuana. And there is what
you call apple baggies. It’s one big bag but it contains
several, it can be fifty, a hundred, I’m not sure the exact
amount, but this one baggie here with the apple on it
contains several smaller baggies, and that’s used for
breaking down narcotics and packaging them.’’ ‘‘There
[were] several small Ziploc baggies [of] various colors,
pink, yellow, clear and purple, and these baggies here
are used to package crack cocaine.’’ The search of the
room did not reveal any paraphernalia necessary for
using any of the recovered drugs. Also found in the
room were several items of men’s clothing, which,
according to the officers conducting the search, could
have fit the defendant, but not Lowe, because Lowe
was approximately eighty pounds heavier than the
defendant.
The defendant was charged in connection with these
seizures, by a long form information filed February 2,
2016, with possession of heroin with intent to sell by
a person who is not drug-dependent in violation of
General Statutes § 21a-278 (b), possession of heroin
with intent to sell in violation of General Statutes § 21a-
277 (a), possession of cocaine with intent to sell by a
person who is not drug-dependent in violation of § 21a-
278 (b), possession of cocaine with intent to sell in
violation of § 21a-277 (a), possession of heroin in viola-
tion of § 21a-279 (a), possession of cocaine in violation
of § 21a-279 (a), and possession of less than four ounces
of a cannabis-type substance (marijuana) in violation
of § 21a-279 (c).3 Following a jury trial, the defendant
was convicted of possession of heroin in violation of
§ 21a-279 (a), possession of cocaine in violation of
§ 21a-279 (a) and possession of less than four ounces
of marijuana in violation of § 21a-279 (c). He was found
not guilty of all remaining charges. The court merged
the defendant’s conviction of possession of heroin and
possession of cocaine into a single conviction of posses-
sion of narcotics, on which it sentenced the defendant
to seven years incarceration, suspended after five years,
and three years of probation. The court sentenced the
defendant on his conviction of possession of less than
four ounces of marijuana to a concurrent term of one
year of incarceration. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the evidence pre-
sented at trial was insufficient to sustain his conviction
of possession of narcotics because the state failed to
prove that he had actual or constructive possession of
the narcotics at issue in this case. We disagree.
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but that] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
‘‘[T]o prove illegal possession of a narcotic substance,
it is necessary to establish that the defendant knew the
character of the substance, knew of its presence and
exercised dominion and control over it. . . . Where
. . . the [narcotics were] not found on the defendant’s
person, the state must proceed on the theory of con-
structive possession, that is, possession without direct
physical contact. . . . One factor that may be consid-
ered in determining whether a defendant is in construc-
tive possession of narcotics is whether he is in
possession of the premises where the narcotics are
found. . . . Where the defendant is not in exclusive
possession of the premises where the narcotics are
found, it may not be inferred that [the defendant] knew
of the presence of the narcotics and had control of
them, unless there are other incriminating statements
or circumstances tending to buttress such an inference.
. . . While mere presence is not enough to support an
inference of dominion or control, where there are other
pieces of evidence tying the defendant to dominion and
control, the [finder of fact is] entitled to consider the
fact of [the defendant’s] presence and to draw infer-
ences from that presence and the other circumstances
linking [the defendant] to the crime. . . . [T]he test for
illegal possession of drugs is that the accused must
know that the substance in question is a drug, must
know of its presence and exercise dominion and control
over it. . . .
‘‘Importantly, [k]nowledge of the presence of narcot-
ics and control may be proved circumstantially. . . .
Knowledge that drugs are present and under a defen-
dant’s control when found in a defendant’s home or car
is more easily shown, of course, if the defendant has
exclusive possession of the area in which the drugs are
found. The difficult cases, such as the present one, arise
when possession of an area, such as a car or home or
an apartment, is shared with another person or persons.
In situations in which the putative offender is not in
exclusive possession of the premises where the narcot-
ics are found, we may not infer that he or she knew of
the presence of the narcotics or that he or she had
control over them, without incriminating statements
or circumstances to support that inference.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Slaughter, 151 Conn. App. 340, 345–47, 95 A.3d 1160,
cert. denied, 314 Conn. 916, 100 A.3d 405 (2014).
Here, because the narcotics at issue were not found
on the defendant’s person, the state was required to
prove that he possessed them constructively. The defen-
dant argues that the state failed to introduce any evi-
dence establishing either ‘‘that the defendant was the
renter of room 208’’ or that there was any ‘‘connection
between the defendant and the narcotics.’’ We disagree.
Although it is true that the state did not introduce
evidence that room 208 was registered to the defen-
dant,4 it did introduce evidence from which the jury
reasonably could have inferred that the defendant knew
of the presence of the narcotics and had control over
them. When the police officers first rammed through
the door of room 208, they found the defendant standing
in front of the TV stand on which the narcotics at issue
were resting in plain sight. The defendant had been
seen entering the motel, and, more particularly, room
208, several times between July and October, 2014. The
officers had never seen Lowe during that three month
period of surveillance. In fact, one of the officers testi-
fied, without contradiction, that he believed that Lowe
had been incarcerated during that period of time. Fur-
thermore, the men’s clothing that was found in the
room, which, by inference, had been brought there by
the room’s occupant, could only have fit the defendant,
not Lowe, who was much heavier than the defendant.
The presence of the clothing supported a reasonable
inference that the defendant was the regular occupant
of the room, and thus that he was in possession and
control of its contents.
When the officers entered the room, the defendant
ran away from the TV stand and, thus, away from the
narcotics in the Altoids tin. The defendant’s act of run-
ning away upon the officers’ entry reasonably could
have been found to support an inference of conscious-
ness of guilt, suggesting that the defendant knew of the
presence and character of the narcotics on the nearby
TV stand and sought to distance himself from them.
Thereafter, moreover, he threw $40, all in $10 bills, into
the bathtub. The police officers testified that bills in
these denominations are generally used in the purchase
of narcotics, particularly where, as here, they are pack-
aged in $10 folds of heroin and $10 bags of crack
cocaine. The jury reasonably could have inferred from
this conduct that the defendant was trying to rid himself
of evidence tying him to the $10 packets of narcotics
that he knew to be on the TV stand. Finally, the surveil-
ling officers testified that they previously had made
‘‘some controlled purchases’’ of narcotics from the
defendant, including at least one purchase of ‘‘crack
cocaine . . . .’’
Although alternative views of the evidence might con-
ceivably have supported inferences of the defendant’s
innocence, our task in adjudicating a challenge to the
sufficiency of the evidence is to view the evidence in
the light most favorable to sustaining the jury’s verdict.
We conclude, on that basis, that a reasonable jury could
have determined, from the evidence presented and the
inferences reasonably drawn therefrom, that the defen-
dant knew of the presence and narcotic character of
the heroin and cocaine in the room, and, as the person
who frequented the room and kept clothing there, it
was he who exercised control over the room and its
contents, including the recovered narcotics. Such evi-
dence was sufficient to sustain the jury’s finding that
he constructively possessed such narcotics beyond a
reasonable doubt.
II
The defendant also claims that the trial court erred
in denying his request for a jury instruction on third-
party culpability. We disagree.
The defendant submitted a written request to charge
the jury on third-party culpability, which read as fol-
lows: ‘‘There has been evidence that a third party, not
the defendant, committed the crimes with which the
defendant is charged. This evidence is not intended to
prove the guilt of the third party, but is part of the total
evidence for you to consider. The burden remains on
the state to prove each and every element of the offense
beyond a reasonable doubt.
‘‘It is up to you, and to you alone, to determine
whether any of this evidence, if believed, tends to
directly connect a third party to the crimes with which
the defendant is charged. If after a full and fair consider-
ation and comparison of all the evidence, you have left
in your minds a reasonable doubt indicating that the
alleged third party, Nevin Lowe, Jr., may be responsible
for the crimes the defendant is charged with commit-
ting, then it would be your duty to render a verdict of
not guilty as to the accused, [the defendant].
‘‘This request is based upon the evidence adduced
that Nevin Lowe, Jr., was arrested for the same crime
and the evidence admitted of the transcript of Nevin
Lowe, Jr.’s plea and the certified disposition of his
case.’’ (Emphasis omitted.)
The court denied the defendant’s request to charge
the jury on third-party culpability, explaining its ruling
as follows: ‘‘A charge on third-party culpability deals
with instructing the jury that there actually has been
evidence that someone other than the defendant com-
mitted the crime or crimes with which the defendant
is charged. Under the evidence in this case . . . the
law requires that I give to the jurors [an instruction]
regarding actual possession [and] constructive posses-
sion . . . . In view of the fact that I also am required
to instruct the jurors that more than one person may
possess the same item and explain to them that this is
known as joint possession, I find that it’s not appro-
priate to give the third-party culpability instruction.
Also, in view of the rulings that I made on defense
exhibit A for identification and defense exhibit B for
identification. [See footnote 5 of this opinion.] Cer-
tainly, [the defense is] free to argue that theory . . .
because what the jury is instructed to consider in terms
of constructive possession includes that the mere pres-
ence of the defendant is not sufficient to support a
finding of constructive possession. It also—they will
be instructed that if the defendant is not in exclusive
possession of the premises, it can’t be inferred that he
knew of the presence of the illegal item and had control
of it unless there are other incriminating statements or
circumstance tending to support the inference. They’re
also going to be instructed that if the evidence shows
that more than one person had access to the premises,
then the defendant’s knowledge and intent to possess
the substance must be established by evidence other
than the mere fact that the defendant, along with others,
occupied or had access to the premises where the sub-
stance was found. So, certainly, they’re going to be
thoroughly instructed on that, and you’re allowed to
argue your theory of the case, but I don’t think that the
evidence in this case is sufficient for me to give them
the instruction that there has been evidence that a third
party, not the defendant, committed the crime or
crimes to which he is charged. So, I decline to give
that instruction.’’ (Emphasis added.)
The defendant claims that the court erred by failing
to instruct the jury in accordance with his request to
charge on third-party culpability. ‘‘In determining
whether the trial court improperly refused a request to
charge, [w]e . . . review the evidence presented at
trial in the light most favorable to supporting the . . .
proposed charge. . . . A request to charge which is
relevant to the issues of [a] case and which is an accu-
rate statement of the law must be given. . . . If, how-
ever, the evidence would not reasonably support a
finding of the particular issue, the trial court has a duty
not to submit it to the jury. . . . Thus, a trial court
should instruct the jury in accordance with a party’s
request to charge [only] if the proposed instructions
are reasonably supported by the evidence. . . . [T]he
very standards governing the admissibility of third party
culpability evidence also should serve as the standards
governing a trial court’s decision of whether to submit a
requested third party culpability charge to the jury. . . .
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in explaining the requirement that the
proffered evidence establish a direct connection to a
third party, rather than raise merely a bare suspicion
regarding a third party, we have stated [that] [s]uch
evidence is relevant, exculpatory evidence, rather than
merely tenuous evidence of third party culpability
[introduced by a defendant] in an attempt to divert
from himself the evidence of guilt. . . . In other words,
evidence that establishes a direct connection between
a third party and the charged offense is relevant to the
central question before the jury, namely, whether a
reasonable doubt exists as to whether the defendant
committed the offense. Evidence that would raise only
a bare suspicion that a third party, rather than the defen-
dant, committed the charged offense would not be rele-
vant to the jury’s determination. A trial court’s decision,
therefore, that third party culpability evidence prof-
fered by the defendant is admissible, necessarily entails
a determination that the proffered evidence is relevant
to the jury’s determination of whether a reasonable
doubt exists as to the defendant’s guilt. . . . Finally,
[t]he trial court’s ruling on the relevancy of third party
inculpatory evidence will be reversed on appeal only
if the court has abused its discretion or an injustice
appears to have been done.’’ (Citations omitted; internal
quotation marks omitted.) State v. Baltas, 311 Conn.
786, 810–11, 91 A.3d 384 (2014).
In his request to charge, as set forth previously, the
defendant explained that his request for an instruction
on third-party culpability was ‘‘based upon the evidence
adduced that Nevin Lowe, Jr., was arrested for the same
crime and the evidence admitted of the transcript of
Nevin Lowe, Jr.’s plea and the certified disposition of
his case.’’ (Emphasis omitted.) Although Lowe was
arrested on October 21, 2014, the record does not reveal
that Lowe and the defendant were charged with the
same crimes. Moreover, neither the transcript of Lowe’s
plea proceeding nor the certified disposition of his case
was admitted into evidence.5 See footnote 3 of this
opinion. The trial court denied the defendant’s offer to
enter them into evidence, and the defendant has not
challenged that ruling on appeal. Because the evidence
on which the defendant sought to base his request to
charge on third-party culpability was not before the
jury, the defendant cannot prevail on a claim of error
for failure to grant that request to charge.
Turning to the evidence that was presented to the
jury, moreover, we agree with the trial court that no
evidence was presented that Lowe, as opposed to the
defendant, possessed the narcotics at issue. It is undis-
puted that Lowe, in addition to the defendant and the
four unidentified females, was present in room 208
when the police officers executed the search warrant
for the room on October 21, 2014. When the police
entered the room, Lowe was sitting in a chair near the
TV stand on which the heroin and cocaine were found.
Although Lowe was sitting on a bag of marijuana and
other items commonly used to package crack cocaine
for sale, there was no heroin or cocaine in that bag.
There were no folds used to package heroin in the bag
found in the chair where Lowe was sitting. Although
the small Ziploc baggies found in that bag were of the
same generic type and size as those containing cocaine
in the Altoids tin, there was nothing so distinctive about
them as to suggest that they had come from, and thus
were possessed and controlled by, one and the same
person. Lowe, like the defendant, was arrested. Unlike
the defendant, however, Lowe had not been seen by the
surveilling officers in the area of the motel or elsewhere
prior to October 21, 2014. In fact, one officer testified
that Lowe was incarcerated during that period of time.
Those officers also testified that the clothing found in
the motel room, which presumably belonged to the
person renting and controlling the room, would have
fit the defendant, but would not have fit Lowe. Thus,
no evidence was presented, apart from Lowe’s presence
in the room on October 21, 2014, that connected Lowe
either to room 208 or to the heroin or cocaine found
inside the room on that date. Any evidence of Lowe’s
connection to the narcotics recovered from room 208
raised, at most, a bare suspicion that he, rather than
the defendant, controlled and possessed them. Because
there was no evidence presented to the jury that Lowe
possessed the narcotics in the room, to the exclusion
of the defendant, an instruction on third-party culpabil-
ity was not required in this case. We thus conclude that
the trial court did not err in denying the defendant’s
request for a jury instruction on third-party culpability
in the present case.
III
The defendant finally claims that he is entitled to
resentencing on his conviction of possession of narcot-
ics because the legislature has retroactively reclassified
the violation of § 21a-279, for a first offense, as a class
A misdemeanor, which carries a maximum sentence of
one year of incarceration. See Public Acts, Spec. Sess.,
June, 2015, No. 15-2, § 1. The defendant concedes, as
he must, that this court’s holding in State v. Moore, 180
Conn. App. 116, 124, A.3d (2018), in which this
court held that the 2015 amendment to § 21a-279 (a),
which took effect October 1, 2015, does not apply retro-
actively and is dispositive of his claim. The defendant’s
claim that he is entitled to be resentenced must there-
fore fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the defendant states in the heading of this claim in his brief
that he is entitled to resentencing on his conviction under both § 21a-279
(a) and (c), he has focused his argument solely on his seven year sentence
for having violated § 21a-279 (a). He thus has not properly challenged his
concurrent one year sentence for having violated § 21a-279 (c).
On October 21, 2014, the date the defendant committed the offense for
which he was convicted, General Statutes (Rev. to 2013) § 21a-279 (a) pro-
vided: ‘‘Any person who possesses or has under his control any quantity of
any narcotic substance, except as authorized in this chapter, for a first
offense, may be imprisoned not more than seven years or be fined not more
than fifty thousand dollars, or be both fined and imprisoned; and for a
second offense, may be imprisoned not more than fifteen years or be fined
not more than one hundred thousand dollars, or be both fined and impris-
oned; and for any subsequent offense, may be imprisoned not more than
twenty-five years or be fined not more than two hundred fifty thousand
dollars, or be both fined and imprisoned.’’
At the time of the defendant’s conviction and sentencing, General Statutes
(Supp. 2016) § 21a-279 (a) provided: ‘‘(1) Any person who possesses or has
under such person’s control any quantity of any controlled substance, except
less than one-half ounce of a cannabis-type substance and except as author-
ized in this chapter, shall be guilty of a class A misdemeanor.
‘‘(2) For a second offense of subdivision (1) of this subsection, the court
shall evaluate such person and, if the court determines such person is a
drug-dependent person, the court may suspend prosecution of such person
and order such person to undergo a substance abuse treatment program.
‘‘(3) For any subsequent offense of subdivision (1) of this subsection, the
court may find such person to be a persistent offender for possession of a
controlled substance in accordance with section 53a-40.’’
Hereinafter, unless otherwise indicated, all references to § 21a-279 (a) in
this opinion are to the 2013 revision of the statute.
2
To get to room 208, one enters the front door of the Honeyspot, which
faces the roadway, walks up the staircase inside that door and walks down
the hall to room 208.
3
Lowe also was arrested. His arrest and subsequent guilty plea will be
discussed in further detail in part II of this opinion.
4
As an explanation for why the officers did not try to ascertain whether
room 208 was registered to the defendant, Policano testified: ‘‘This hotel
. . . when you walk into the front desk there’s no computer. There’s no—
you can rent a room by the hour. Very often, and we’ve done it in the past,
is to put people working for us up into the room, you just pay the guy cash.
You don’t have to show I.D. many times. And the paperwork, from my
experience, has been unreliable. People that we’re looking for [are] fugitives
and so forth that we know are in a particular room; you go to the front
desk and they—they give their hands up like this; they don’t know.’’
5
The referenced documents are marked, respectively, as defendant’s
exhibits A and B for identification.