Summary
construing § 53a-148 as not requiring specific intent
Summary of this case from U.S. v. Triumph Capital Group, Inc.Opinion
(2191)
The defendant, a New Haven police officer, was charged with the crime of receiving a bribe ( 53a-148) and was convicted of the crime of accepting a gift or reward ( 29-9). On his appeal to this court, held that because proof of specific intent is required for a conviction under 29-9 but is not required for conviction under 53a-148, the trial court erred in determining that the crime of accepting gifts or rewards is a lesser offense included in the crime of receiving a bribe; therefore, the defendant's conviction had to be reversed.
Argued June 4, 1985
Decision released August 27, 1985
Information charging the defendant with the crime of bribe receiving, brought to the Superior Court in the judicial district of New Haven, geographical area number six, and tried to the court, A. Aronson, J.; judgment of guilty of the crime of acceptance of gifts or rewards by state or local police, from which the defendant appealed to this court. Error; judgment directed.
James E. Swaine, for the appellant (defendant).
William Domnarski, deputy assistant state's attorney, with whom, on the brief, was John M. Massameno, assistant state's attorney, for the appellee (state).
The defendant appeals from a judgment of the trial court which acquitted him on the charge of bribe receiving in violation of General Statutes 53a-148, but convicted him of accepting a gift or gratuity in violation of General Statutes 29-9, holding the latter offense to be a lesser included offense of General Statutes 53a-148. The defendant moved to vacate the judgment and for a judgment of acquittal. The court denied both motions.
General Statutes 53a-148 provides, in pertinent part: "A public servant or a person selected to he a public servant is guilty of bribe receiving if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote."
General Statutes 29-9 provides, in pertinent part: "Any state police officer appointed as provided in section 29-4, any police officer of any city, town or borough and any person having the power of arrest who, directly or indirectly, receives a reward, gift or gratuity for the purpose of influencing his behavior in office, or any person who gives, offers or promises to a police officer or any person having the power of arrest any reward, gift or gratuity with the intent to influence his behavior in office, shall be fined not more than one hundred dollars or imprisoned not more than six months or both, and the police officer shall be dishonorably discharged from the division of state police or from the police department."
The following facts are not in dispute. The defendant, a New Haven police officer, was employed in an off-duty capacity as an additional security guard during a rock concert performance at the New Haven Coliseum. It was the policy of the coliseum to place uniformed off-duty police officers at the exit doors of the arena.
During intermission, a security officer employed by the coliseum observed the defendant permit two young men to enter the arena through the doorway assigned to the defendant. The defendant then called the two men back, whereupon both men took money out of their wallets and passed it to the defendant. The security officer subsequently reported the incident, which led to the defendant being charged with a violation of General Statutes 53a-148.
On appeal from the judgment of conviction, the defendant raises several claims of error. His first claim is dispositive of the case. The defendant argues that General Statutes 29-9 is not a lesser included offense of General Statutes 53a-148.
An offense will not be considered a lesser included offense of another offense unless "it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414, 420 (1980). "`"The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense . . . without having first committed the lesser."'" State v. Castro, 196 Conn. 421, 428, 493 A.2d 223 (1985); see also State v. Troynack, 174 Conn. 89, 97, 384 A.2d 326 (1977); State v. Carr, 172 Conn. 458, 465-66, 374 A.2d 1107 (1977). Thus, in order for General Statutes 29-9 to be a lesser included offense of General Statutes 53a-148, it must not require any element which is not needed to commit the offense of bribe receiving under General Statutes 53a-148. See generally Schuman Lager, "Connecticut's Lesser Included Offense Doctrine: Part 1," 54 Conn. B. J. 313 (1980); Lager Schuman, "Connecticut's Lesser Included Offense Doctrine: Part II," 55 Conn. B. J. 207 (1981); note, "Lesser Offense in Connecticut: A Critical Analysis," 3 U. Bridgeport L. Rev. 105 (1981).
The essential elements which constitute a violation of General Statutes 29-9 are (1) receiving, directly or indirectly, (2) by a police officer or a person having the power of arrest, (3) any reward, gift or gratuity, (4) with the purpose of influencing his behavior in office. The statute imposes the requirement that the state prove a specific intent, namely, that the receipt of a benefit by the police officer was "for the purpose of influencing" his conduct. General Statutes 29-9; see State v. Carr, supra, 465-67.
In contrast, General Statutes 53a-148 does not require a specific intent. Id. Specifically, the statute states that a defendant is guilty of bribe receiving "if he solicits, accepts or agrees to accept from another any benefit for, because of or as consideration for his decision, opinion, recommendation or vote." (Emphasis added.) Nowhere does the language of General Statutes 53a-148 require the element of specific intent found in General Statutes 29-9. This distinction in the statutory language is significant. See State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). General Statutes 29-9 requires an element of proof of specific intent which is not needed to prove the offense of bribe receiving under General Statutes 53a-148. Accordingly, the trial court erred in determining that General Statutes 29-9 is a lesser included offense of General Statutes 53a-148.
Ordinarily, the greater offense is the one which requires the more culpable mental state, and the greater penalty. See State v. Smith, 185 Conn. 63, 67, 441 A.2d 84 (1981); State v. Fernandez, 5 Conn. App. 40, 45, 496 A.2d 533 (1985). General Statutes 53a-148 is a class D felony which carries a maximum term of imprisonment of five years, while General Statutes 29-9 imposes a fine of not more than one hundred dollars or six months imprisonment, or both, in addition to dishonorable discharge from the police department. The latter offense, however, requires a more culpable mental state than does General Statutes 53a-148, a crime with a greater maximum term of imprisonment.
Our determination is in accord with an earlier decision of the Connecticut Supreme Court which held that General Statutes 29-9 is not a lesser included offense of bribery under General Statutes 53a-147. State v. Carr, supra, 467. The crime outlined in General Statutes 53a-148 is the antipodean crime of General Statutes 53a-147. One is the flip side of the other.
The state contends that both General Statutes 53a-148 and 29-9 are specific intent crimes. Such a conclusion is contrary to the holding of State v. Carr, 172 Conn. 458, 374 A.2d 1107 (1977). We will not "overrule" that case as requested by the state. O'Connor v. O'Connor, 4 Conn. App. 19, 20, 492 A.2d 207, cert. granted, 196 Conn. 812, 495 A.2d 280 (1985).