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4.4-2 Failure to Appear (While on Probation) -- § 53a-172 (a) (2) and § 53a-173 (a) (2)
Revised to December 1, 2007
Note: The degree of the offense depends on the classification of the underlying crime. See § 53a-172 (first degree: felony); § 53a-173 (second degree: misdemeanor or motor vehicle violation which a sentence of a term of imprisonment may be imposed).
The defendant is charged [in count ___] with failure to appear in the (first/second) degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of failure to appear in the (first / second) degree when while on probation for conviction of a (felony / misdemeanor / motor vehicle violation), (he/she) wilfully fails to appear when legally called for a violation of probation hearing.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - On probation
The first element is that the
defendant was on probation for a conviction of a (felony / misdemeanor / motor
vehicle violation). I instruct you, as a matter of law, that the crime of <insert
underlying charge> is a (felony / misdemeanor / motor vehicle violation).
Element 2 - Duty to appear
The second element is that on <insert
date>, the defendant was required to appear before (a court or judicial
officer) in connection with the charge of violation of probation.
Element 3 - Failure to appear
The third element is that the
defendant wilfully failed to appear as required. An act is done wilfully if
done knowingly, intentionally, and deliberately. In order to prove this
element, the state must prove beyond a reasonable doubt either that the
defendant received and knowingly, intentionally, and deliberately ignored a
notice to appear or that the defendant knowingly, intentionally, and
deliberately embarked on a course of conduct designed to prevent (him/her) from
receiving such notice.1
<See
Knowledge, Instruction 2.3-3.>
Conclusion
In summary, the state must prove beyond a reasonable doubt that 1) the defendant was on probation for a conviction of a (felony / misdemeanor / motor vehicle violation), 2) (he/she) was required to appear on <insert date> in connection with the charge of violation of probation, and 3) (he/she) wilfully failed to appear.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
failure to appear, then you shall find the defendant guilty. On the other hand,
if you unanimously find that the state has failed to prove beyond a reasonable
doubt any of the elements, you shall then find the defendant not guilty.
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1
State v. Cerilli,
222 Conn. 556, 583-84 (1992).