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House of Representatives

File No. 816

General Assembly

 

January Session, 2017

(Reprint of File No. 638)

Substitute House Bill No. 7256

 

As Amended by House Amendment

Schedule "A"

Approved by the Legislative Commissioner

May 31, 2017

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

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2017) Each department head, as defined in section 4-5 of the general statutes, including the Commissioner of Education, and the Chief Justice of the Supreme Court shall promptly notify the Division of Criminal Justice of any death of a person in the care, custody or control of any person or entity under the jurisdiction of such department head or the Chief Justice.

Sec. 2. Subsection (b) of section 53a-70c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2017):

(b) Aggravated sexual assault of a minor is a class A felony and any person found guilty under this section shall, for a first offense, be sentenced to a term of imprisonment, [of] twenty-five years of which may not be suspended or reduced by the court and, for any subsequent offense, be sentenced to a term of imprisonment of fifty years which may not be suspended or reduced by the court.

Sec. 3. Subsection (c) of section 53a-167c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2017):

(c) In any prosecution under this section involving assault of a health care employee, as defined in section 19a-490q, it shall be [a] an affirmative defense that the defendant is a person with a disability as described in subdivision (13), (15) or (20) of section 46a-51 and the defendant's conduct was a clear and direct manifestation of the disability, except that for the purposes of this subsection, "mental disability", as defined in subdivision (20) of section 46a-51, does not include any abnormality manifested only by repeated criminal or antisocial conduct.

Sec. 4. Subsections (b) to (e), inclusive, of section 54-47aa of the general statutes are repealed and the following is substituted in lieu thereof (Effective October 1, 2017):

(b) A law enforcement official may apply for an ex parte order from a judge of the Superior Court to compel (1) a telecommunications carrier to disclose call-identifying information pertaining to a subscriber or customer, (2) a provider of electronic communication service or remote computing service to disclose basic subscriber information pertaining to a subscriber or customer, or (3) a telecommunications carrier or a provider of electronic communication service or remote computing service to disclose the content of a subscriber's or customer's communications or geo-location data associated with a subscriber's or customer's call-identifying information. [The] In the case of an application for an order to compel disclosure under subdivision (1) or (2) of this subsection, the judge shall grant such order if the law enforcement official swears under oath to a statement of [(A)] a reasonable and articulable suspicion that a crime has been or is being committed and such call-identifying or basic subscriber information is relevant and material to an ongoing criminal investigation. [, in which case such order shall not authorize disclosure of the content of any communication or geo-location data, or (B)] In the case of an application for an order to compel disclosure under subdivision (3) of this subsection, if the judge makes a finding of probable cause to believe that a crime has been or is being committed and the content of such subscriber's or customer's communications or the geo-location data associated with such subscriber's or customer's call-identifying information is relevant and material to an ongoing criminal investigation, [in which case such order shall authorize] the judge shall grant such order authorizing the disclosure of such information, content or geo-location data. Any [such] order entered pursuant to this subsection shall state upon its face the case number assigned to such investigation, the date and time of issuance and the name of the judge authorizing the order. The law enforcement official shall have any ex parte order issued pursuant to this subsection signed by the authorizing judge within forty-eight hours or not later than the next business day, whichever is earlier. No order pursuant to this subsection shall authorize the disclosure of any such information, content or data for a period in excess of fourteen days.

(c) A law enforcement official may apply directly to a telecommunications carrier or provider of electronic communication service or remote computing service for production of geo-location data for a period not in excess of forty-eight hours, including real-time or historical geo-location data, or any combination of such data, pertaining to an identified subscriber or customer. The telecommunications carrier or provider of electronic telecommunication service or remote computing service may provide the requested geo-location data upon the applicant stating under oath: (1) That facts exist upon which to base a belief that the data sought is relevant and material to an ongoing criminal investigation; (2) a belief that exigent circumstances exist; and (3) the facts supporting the belief that exigent circumstances exist. Any subsequent application for information from the same telecommunication carrier or provider of electronic communication service or remote computing service for production of geo-location data in connection with the same investigation shall be made pursuant to subsection (b) of this section.

(d) [A] Whenever an order is issued pursuant to subsection (b) of this section, a telecommunications carrier shall disclose to the appropriate law enforcement official call-identifying information or the content of a subscriber's or customer's communications or geo-location data, and a provider of electronic communication service or remote computing service shall disclose to the appropriate law enforcement official basic subscriber information [to a law enforcement official when an order is issued pursuant to subsection (b) of this section] or the content of a subscriber's or customer's communications or geo-location data, as directed by the order.

(e) Not later than forty-eight hours after the issuance of an order pursuant to subsection (b) of this section, the law enforcement official shall mail notice of the issuance of such order to the subscriber or customer whose call-identifying information, communications data or geo-location data or basic subscriber information is the subject of such order, except that such notification may be delayed for a period of up to ninety days upon the execution of a written certification of such official to the judge who authorized the order that there is reason to believe that notification of the existence of the order may result in (1) endangering the life or physical safety of an individual, (2) flight from prosecution, (3) destruction of or tampering with evidence, (4) intimidation of potential witnesses, or (5) otherwise seriously jeopardizing the investigation. The law enforcement official shall maintain a true copy of such certification. During such ninety-day period, the law enforcement official may request the court to extend such period of delayed notification. Such period may be extended beyond ninety days only upon approval of the court. The applicant shall file a copy of the notice with the clerk of the court [that issued such order] for the geographical area within which any person who may be arrested in connection with or subsequent to the execution of the order would be presented, and such notice shall include the case number assigned to such investigation pursuant to subsection (b) of this section. If information is provided in response to the order, the applicant shall, not later than ten days after receiving such information, file with the clerk a return containing an inventory of the information received. Such return and inventory shall include the case number assigned to such investigation pursuant to subsection (b) of this section, and such return and inventory shall remain sealed until the copy of the notice is filed with the clerk pursuant to this section. If a judge finds there is a significant likelihood that such notification would seriously jeopardize the investigation and issues an order authorizing delayed notification under this subsection, the telecommunications carrier or provider of electronic communication service or remote computing service from whom the call-identifying information, communications data, geo-location data or basic subscriber information is sought shall not notify any person, other than legal counsel for the telecommunications carrier or provider of electronic communication service or remote computing service and the law enforcement official that requested the ex parte order, of the existence of the ex parte order. Any information provided in response to the court order shall be disclosed to the defense counsel.

Sec. 5. Subsection (f) of section 54-142a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2017):

(f) Upon motion properly brought, the court or a judge [thereof] of such court, if such court is not in session, [may] shall order disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased, or (2) to the prosecuting attorney and defense counsel in connection with any perjury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial, or any false statement charges, or any proceeding held pursuant to section 53a-40b, or (3) counsel for the petitioner and the respondent in connection with any habeas corpus or other collateral civil action in which evidence pertaining to a nolled or dismissed criminal charge may become relevant. Such disclosure of such records is subject also to any records destruction program pursuant to which the records may have been destroyed. The jury charge in connection with erased offenses may be ordered by the judge for use by the judiciary, provided the names of the accused and the witnesses are omitted therefrom.

Sec. 6. Section 51-277b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2017):

When any judge of the Superior Court, Appellate Court or Supreme Court or employee of the Judicial Department may be affected by a law enforcement investigation, any law enforcement agency conducting such an investigation shall inform the Chief State's Attorney and the appropriate state's attorney of such investigation in a timely manner. The Chief State's Attorney shall inform the Chief Court Administrator of such investigation, provided such disclosure does not compromise any such investigation. [The Chief State's Attorney shall adopt regulations in accordance with chapter 54 to implement the provisions of this section.]

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2017

New section

Sec. 2

October 1, 2017

53a-70c(b)

Sec. 3

October 1, 2017

53a-167c(c)

Sec. 4

October 1, 2017

54-47aa(b) to (e)

Sec. 5

October 1, 2017

54-142a(f)

Sec. 6

October 1, 2017

51-277b

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.


OFA Fiscal Note

State Impact: None

Municipal Impact: None

Explanation

The bill makes various changes to criminal justice statutes that do not result in a fiscal impact.

House “A” makes procedural changes and does not result in a fiscal impact.

The Out Years

State Impact: None

Municipal Impact: None

OLR Bill Analysis

sHB 7256 (as amended by House "A")*

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

SUMMARY

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

The bill also 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).

*House Amendment “A” (1) adds the provision which eliminates the requirement that the chief state's attorney adopt certain regulations and (2) makes technical and clarifying changes concerning court orders to compel disclosure of cell phone and internet records.

EFFECTIVE DATE: October 1, 2017

2 — AGGRAVATED SEXUAL ASSAULT OF A MINOR

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

Under current law, the statute defining the offense provides that someone convicted of this crime must be sentenced to a 25-year mandatory prison term for a first offense. Another law provides that this crime is punishable by a prison term of 25 years to 50 years (CGS 53a-35(a)(3)). The bill amends the law defining the offense to specify that the 25-year term is a mandatory minimum, and thus the maximum sentence can be 50 years.

Under existing law, unchanged by the bill, 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, punishable by up to 10 years in prison, a fine of up to $10,000, or both. Current law allows a defendant to claim as a defense that he or she has a mental, physical, or intellectual disability and the conduct was a clear and direct manifestation of the disability.

The bill 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 bill, 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, law enforcement officials can apply for ex parte court orders (i.e., orders issued without a hearing or prior notice to a customer) to compel phone and internet providers to disclose certain information about their customers' accounts or activities, for use in criminal investigations. Specifically, they can apply for such orders to compel:

The bill makes technical changes to clarify the standards that must be met to grant these orders. Under current law and the bill, the standard is (1) reasonable and articulable suspicion of a crime, to compel disclosure of call-identifying or basic subscriber information, and (2) probable cause, to compel disclosure of a communication's contents or the geo-location data. In any such case, the information to be disclosed must be relevant and material to an ongoing criminal investigation.

By law, 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).

Current law requires the official to file a copy of the notice with the court that issued the order. The bill instead requires the official to file the notice with the 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 bill requires the return and inventory to (1) include the investigation case number and (2) remain sealed until the notice is filed.

The bill makes additional technical changes to conform to changes made in PA 16-148, clarifying that the notice provisions and other requirements apply to communications data and geo-location data as set forth in that act.

5 — DISCLOSURE OF ERASED CRIMINAL RECORDS

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

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

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 Superior, Appellate, or Supreme Court 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 bill eliminates the requirement that the chief state's attorney adopt regulations to implement these provisions.

BACKGROUND

Erased Criminal Records

The law requires the erasure of police, prosecutorial, and court records when a person:

The person charged is deemed to have never been arrested for the erased charges (CGS 54-142a).

Related Case

In State v. Apt (319 Conn. 494 (2015)), the Connecticut Supreme Court considered the case of a defendant who was arrested for committing a crime, released on bond, and later arrested and convicted of another crime. On the later crime, the state sought to enhance the defendant's sentence because the later crime was committed while the defendant was released on bond for the original charge (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 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 Bill

sHB 7291 (File 705), passed by the House on May 17, sets conditions for law enforcement officials to install and use a cell site simulator device to obtain geo-location data related to a criminal investigation. Specifically, it allows them to do so for up to (1) 48 hours without a court order in exigent circumstances and (2) two weeks under an ex parte court order issued under a probable cause standard.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable

Yea

39

Nay

0

(03/29/2017)

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