Judicial District of Hartford


      Criminal; Whether General Statutes § 53a-92 (a) (2) (B), Kidnapping in the First Degree, is Unconstitutionally Vague as Applied to the Facts in this Case; Whether Jury Instructions were Improper.  The defendant was convicted of robbery, conspiracy to commit robbery, burglary, conspiracy to commit burglary, kidnapping and two counts of larceny.  At trial, the evidence showed that the defendant and two other men entered an apartment and then proceeded into a bedroom occupied by Madeline Garay and Carlos Ortiz.  Garay was awakened when one of the men tapped her on the shoulder with a gun and asked her, "Where's the money?"  The men put duct tape on Garay's mouth, placed a gun in Ortiz's mouth after he tried to escape through a window and unsuccessfully  attempted to fire a gun between Garay and Ortiz.  As the men looked around the bedroom for valuables, they kept a gun pointed at Garay and Ortiz.  The men took two motor vehicles, jewelry and a cell phone.  On appeal, the defendant claims that the kidnapping statute, General Statutes § 53a-92 (a) (2) (B), is unconstitutionally vague as applied to the facts of this case.  The statute provides, in relevant part, that "a person is guilty of kidnapping in the first degree when he abducts another person and . . . restrains the person abducted with intent to . . . accomplish or advance the commission of a felony."  The defendant argues that he lacked notice that the restraint of Garay could serve as the basis of a kidnapping charge because the evidence did not show that more force was used on Garay than was necessary to commit the underlying felony of robbery.  The defendant further claims that he was the victim of arbitrary and discriminatory enforcement of the kidnapping statute because, as robbery requires the use or threatened use of immediate force, any robbery could qualify as a kidnapping.  The defendant also argues that (1) the kidnapping instructions were improper because the trial court did not instruct the jury, in accordance with State v. Salamon, 287 Conn. 509 (2008), and State v. Sanseverino, 287 Conn. 608 (2008), that it must find the defendant not guilty of kidnapping if it finds that the defendant's restraint of the victim was merely incidental to the defendant's commission of another crime against the victim; (2) the trial court should have instructed the jury that, in order to convict the defendant of the conspiracy charges, it must find that the defendant had the specific intent to commit the crimes that were the subject of the conspiracies; (3) the trial court's robbery and larceny instructions failed to relate the rules of law adequately to the facts of the case by failing to specify whether the victim of the robbery was Garay or Ortiz and by failing to specify which larceny charge related to which motor vehicle; and (4) the trial court neglected to instruct the jury that, in order to convict the defendant on the burglary charge, it must reach a unanimous decision as to which crime the defendant intended to commit when he unlawfully entered the apartment.