2005 Ct. Sup. 15372
No. N23N CR03-18148Connecticut Superior Court Judicial District of New Haven Geographic Area 23 at New Haven
November 22, 2005
MEMORANDUM OF DECISION
THOMAS P. MIANO, FRANK A. IANNOTTI, CARMEN E. ESPINOSA, JUDGES.
Gerald Moyher, petitioner, was convicted[1] after trial by jury of Assault of a Public Safety or Emergency Medical Personnel, a violation of CGS Sec. 53a-167c, a Class C felony which provides a maximum term of 10 years incarceration. The court imposed a sentence of four (4) years to serve to be followed by a period of 6 years special parole. It is this sentence petitioner seeks to have reviewed.
The record reveals the following factual basis for the conviction:
On June 13, 2003 at approximately 2:20 p.m., a Woodbridge Police Officer was in the vicinity of 7 Hazel Terrace. The officer observed an individual, known to him as Christopher Donahue, grab a dog by the collar and yank the dog off the front porch. Donahue was then observed opening the front storm door with his left hand while throwing the dog inside of the house at full strength. The officer observed the dog land on its back, yelping. At this point, the officer exited his vehicle and approached Donahue. Donahue said that the dog was owned by his mother’s boyfriend, Gerald Moyher, who was not home at the time. The officer also observed that the dog appeared to be having trouble with one of its hind legs, as it was walking on only three legs. Donahue stated that the dog had previously been struck by a car, however, they could not afford to take him to the vet. The Animal Control Officer was summoned at this point.
After the Animal Control Officer arrived, she immediately took the dog into custody. Donahue was CT Page 15373 issued a written summons for Cruelty to Animals. Donahue subsequently contacted his mother, Doreen Storer, who in turn, contacted the offender, Gerald Moyher. Moyher subsequently contacted Donahue by phone and the police questioned Moyher if the dog was registered and had its Rabies shots. Moyher indicated that the dog had neither. He was advised that Animal Control was taking the dog, at which point he said he would be right over.
Moments later, the offender returned home and the K-9 Officer began to explain the situation to him. As the K-9 Officer spoke, both the offender and Doreen Storer began yelling at her and police clearly detected an odor of alcohol on the breath of both subjects. At one point, the offender approached the K-9 Officer, prompting the K-9 Officer to raise her hand and state: “Sir, you smell like alcohol, please step back.” Both the offender and Storer continued yelling and at one point, the offender told Storer to “Get in the f____ king house,” before grabbing her arm. She was able to slip the offender’s grasp and remained on the front lawn. The offender, again, told her to go inside but she refused to listen to him.
Back-up officers were summoned and the offender subsequently shoved Doreen Storer inside the front door before slamming the door in the officer’s face. After witnessing the offender’s aggressive behavior, police, concerned for the safety of Storer, knocked on the door and opened it. Officers stepped inside the doorway and were told by the offender that they were trespassing and to get out. Storer told the offender to shut up, for fear that he would be arrested. At this point, the offender shoved Storer behind a door, which was directly behind him, and slammed it shut. The offender, again, told the officer that he was trespassing, before placing his hands on the officer and shoving him. He was advised that he was being placed under arrest, at which point he became combative with the two officers. Donahue and Storer attempted to approach, but were ordered by the K-9 Officer to step back. The offender attempted to spin away and free himself from the two officers but was subsequently forced to the ground and CT Page 15374 subdued.[2]
At the hearing before the Division counsel for the petitioner recounted the facts that petitioner’s dog was being taken away because it had a broken hip and petitioner was summoned to the scene. Counsel indicated factors in mitigation are that petitioner has his job waiting, petitioner has a problem with alcohol and that the incident does not warrant isolation from society.
The petitioner read a statement which was submitted to the Division wherein petitioner related, inter alia, that his rights were violated and that the sentence was disproportionate and requested that the Division “reduce his sentence by one-half if not time served.”
Counsel for the stated related that petitioner has an extensive criminal history which “is deplorable.” Counsel related that petitioner has a severe alcohol problem and petitioner has not come to terms with his addiction. Counsel further related that the Pre-Sentence Investigation (PSI) recommended against any supervised release in light of petitioner’s repeated past failures on probation and his violent history.
Pursuant to Connecticut Practice Book § 43-23 et seq., the Sentence Review Division is limited in the scope of its review. The Division is to determine whether the sentence imposed “should be modified because it is inappropriate or disproportionate in the light of the nature of the offense, the character of the offender, the protection of the public interest and the deterrent, rehabilitative, isolative and denunciatory purposes for which the sentence was intended.”
The Division is without authority to modify sentences except in accordance with the provisions of Connecticut Practice Book §43-23 et seq., and Connecticut General Statute § 51-194 et seq.
Taking into consideration the egregious criminal history of the petitioner and the nature of the present convictions, the sentence imposed is neither inappropriate nor disproportionate.
In reviewing the record as a whole, the Division finds that the sentencing court’s actions were in accordance with the parameters of Connecticut Practice Book § 43-23 et seq. CT Page 15375
THE SENTENCE IS AFFIRMED.
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