PA 17-216—sHB 7256

Judiciary Committee

AN ACT CONCERNING REVISIONS TO CERTAIN CRIMINAL JUSTICE STATUTES AND THE REPORTING OF THE DEATH OF ANY PERSON IN STATE CUSTODY

SUMMARY: This act makes various changes to laws concerning certain crimes and criminal investigations, including:

1. clarifying that the maximum prison term for a first conviction of aggravated sexual assault of a minor is 50 years;

2. making it an affirmative defense, rather than a standard defense, that an assault of a health care employee was a direct manifestation of the defendant's disability;

3. prohibiting the use of the above affirmative defense by individuals with a disability manifested only by repeated criminality or antisocial conduct;

4. changing certain procedures concerning court filings after law enforcement officials are granted ex parte court orders compelling disclosure of cell phone and internet records;

5. expanding the circumstances under which courts must disclose erased criminal records, such as requiring disclosure to counsel in habeas proceedings if evidence of erased charges may become relevant; and

6. eliminating a requirement that the chief state's attorney adopt certain regulations.

Additionally, the act requires any executive branch department head and the state Supreme Court's chief justice to promptly notify the Division of Criminal Justice if someone dies while in the care, custody, or control of anyone under the department head's or chief justice's jurisdiction ( 1).

The act also makes minor and technical changes.

EFFECTIVE DATE: October 1, 2017

2 — AGGRAVATED SEXUAL ASSAULT OF A MINOR

The act clarifies that the maximum prison term for a first conviction of aggravated sexual assault of a minor is 50 years.

An existing law on felony penalties provides that this crime is punishable by a prison term of 25 years to 50 years (CGS 53a-35a). Under prior law, the statute defining the offense provided that someone convicted of this crime had to be sentenced to a 25-year mandatory prison term for a first offense. The act amends the law defining the offense to specify that the 25-year term is a mandatory minimum, and thus, in accordance with CGS 53a-35a, the maximum sentence is 50 years.

Under existing law, unchanged by the act, there is a mandatory 50-year prison term for a subsequent offense.

3 — ASSAULT OF A HEALTH CARE EMPLOYEE

Under existing law, assault of a health care employee is a class C felony (see Table on Penalties). A defendant may claim as a defense that he or she has a mental or physical disability or intellectual disability and the conduct was a clear and direct manifestation of the disability.

The act makes two changes to these provisions. First, it provides that the defense is an affirmative defense. By law, a defendant has the burden of establishing an affirmative defense by a preponderance of the evidence, while the state has the burden of disproving other defenses beyond a reasonable doubt (CGS 53a-12).

Second, under the act, an abnormality manifested only by repeated criminal or antisocial conduct is not a qualifying mental disability for purposes of this defense.

4 — COMPELLED DISCLOSURE OF CELL PHONE AND INTERNET RECORDS

By law, a law enforcement official can apply for an ex parte court order (i.e., issued without a hearing or prior notice to anyone except the applicant) to compel phone and internet providers to disclose certain information about their customers' accounts or activities for use in criminal investigations. After the court issues such an order, the law enforcement official must mail notice of the order within 48 hours to the person whose records were sought, unless the official requests a 90-day delay for certain reasons (e.g., notification would endanger someone's safety).

Prior law required the official to file a copy of the notice with the court that issued the order. The act instead requires the official to file the notice with the geographical area court where anyone who could be arrested in relation to the order would be presented. It also requires the notice to include the case number assigned to the investigation.

Under existing law, if the official who requested the order receives information in response to it, he or she must file a return with the court within 10 days, including an inventory of the information received. The act requires the return and inventory to (1) include the investigation case number and (2) remain sealed until the notice is filed.

The act also makes technical changes to these provisions, including changes to conform to changes made in PA 16-148.

5 — DISCLOSURE OF ERASED CRIMINAL RECORDS

The act requires the court to disclose erased criminal records to:

1. the petitioner's and respondent's attorneys in connection with any habeas corpus proceeding or other collateral civil action in which evidence about a nolled or dismissed criminal charge may become relevant and

2. the prosecutor and defense counsel in connection with (a) false statement charges or (b) proceedings on sentence enhancement for an offense committed while the person was on release (see BACKGROUND, Related Case).

The act also requires, rather than allows, the court to disclose erased records to:

1. a defendant in an action for false arrest arising out of the erased proceeding and

2. the prosecutor and defense counsel when the records are connected to a perjury charge that the prosecutor alleges to have arisen from testimony at trial.

The court must order disclosure of any such records upon a proper motion.

As under the existing law on disclosure of erased records, such disclosure is subject to any records destruction program under which the records may have been destroyed.

6 — ELIMINATION OF REGULATION REQUIREMENT

By law, a law enforcement agency must inform the chief state's attorney and the appropriate state's attorney if it is conducting an investigation that may affect a judge or Judicial Branch employee. The chief state's attorney must then inform the chief court administrator of the investigation, as long as the disclosure does not compromise the investigation.

The act eliminates the requirement that the chief state's attorney adopt regulations to implement these provisions.

BACKGROUND

Related Case

In State v. Apt (319 Conn. 494 (2015)), the state had sought to enhance a defendant's sentence for a crime committed while the defendant was released on bond for an earlier arrest (see CGS 53a-40b). Before the hearing on the sentence enhancement, the original charge on which the defendant was released on bond was dismissed, and the records of it erased.

The Connecticut Supreme Court ruled that the state could not use the erased records to prove that the defendant was on release when he committed the later crime and, therefore, eligible for the sentence enhancement. But the court also ruled that the state could seek to prove eligibility for the sentence enhancement using other evidence.

Related Act

PA 17-221 sets conditions for law enforcement officials, in criminal investigations, to install and use a cell site simulator device to obtain geo-location data for a cell phone or other electronic device.