Connecticut Criminal Lawyer Blog

Lawyers are closely watching the case of a swimming pool company president who was charged with second-degree manslaughter Monday in a drowning case, saying it could change the legal landscape for business owners in Connecticut.

If successfully prosecuted, the criminal case against David Lionetti, president of Shoreline Pools in Stamford, could hold the state's business owners and professionals to a new and stricter level of responsibility for their work, legal experts said.

Lionetti, 53, has been released on $25,000 bail. He faces up to 10 years in prison if convicted. Police say Lionetti, of Stamford, "recklessly caused the death" of 6-year-old Zachary Cohn in 2007 by failing to install mandated safety devices in the pool. Zachary drowned after his arm was trapped by the suction of a powerful drain pump.

Although the case is not unprecedented, criminal defense lawyers and legal experts said it is unusual.

"My guess is, if you've got a business where you're dealing with dynamite or nitro, they're going to hold you to a reckless standard if you do anything remotely off the protocol," said Todd Fernow, a professor at the University of Connecticut School of Law, who heads the school's criminal law clinic. "But for something like a pool? People drown in pools every day."

Lionetti's attorney, Richard Meehan Jr., said his client plans to plead not guilty.

Eugene Riccio, a criminal defense lawyer in Bridgeport, described Lionetti's case as a "creative use of the manslaughter statute" that could very well be proven in court.

"Just because it's creative doesn't mean it's legally flawed," he said. "It puts other people involved in commercial activities on notice that they could be held criminally liable in the conduct of their business."

Defense lawyer Audrey Felson said she was "at a loss for words" when she first heard about the criminal charge brought against Lionetti.

"This is the first time I've ever heard of this rising to the level of criminal responsibility. ... There's a lot of gray area [in criminal law], but these are things we would've never thought," she said. "I could imagine it would make people in the service industry, whatever they do, much more concerned about what their obligations and responsibilities are."

The case does not mark the first time that a business owner has been criminally charged in connection with services rendered in Connecticut.

David Wilcox, owner of the dump truck in a 2005 crash on Avon Mountain that killed four and injured 11, is facing manslaughter charges.

Fernow recalled an electrician he represented 15 years ago who was convicted of second-degree manslaughter after he incorrectly wired a heater and caused a house fire that killed a young child. Fernow unsuccessfully appealed the case, but he remains skeptical of the charge against Lionetti.

"There are going to be a lot of dueling experts. It's going to be a very difficult case to litigate depending on [Lionetti's] track record," he said. "They're going to have to show actual knowledge on his part of the failure to take measures. And I would be surprised, without knowing all of the facts, if this goes all the way."

It's possible, he said, that "this is just a show trial, to accomplish the purpose by scaring people."

Since 1985, more than 150 cases have been reported in the U.S. of swimming pool drain entrapments, leading to at least 48 deaths and many serious injuries, including disembowelment, of children and adults, according to a lawsuit filed by Zachary's parents.

Police said Zachary Cohn drowned when his arm got stuck in an intake valve in the deep end of the family's in-ground pool on July 26, 2007. Water entering the intake valve is pumped through filters before being returned to the pool.

Zachary's parents, Brian Cohn, former president of one of the world's largest hedge funds, SAC Capital Advisors, and his wife, Karen, have filed a civil lawsuit alleging that the pool violated safety code requirements.

In a statement released Monday, the couple said they hoped that filing criminal charges against Lionetti would "prevent another horrific incident like this from happening to someone else."

"Those who knowingly violate pool safety codes designed to protect children should be held accountable for their actions," the couple said in the statement.

Contact Lynn Doan at ldoan@courant.comt.

An Associated Press report is included in this story.

By LYNN DOAN | Courant Staff Writer

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A career criminal who fatally strangled and stabbed a woman last year, leaving her to die at the Connecticut River in South Windsor, was sentenced to 35 years in prison today.

William Walters of Windsor Locks was sentenced in Superior Court in Hartford before Judge David Gold, who said this is effectively a life sentence.

Walters is 46 and is not eligible for parole.

On April 24, Walters pleaded guilty to murder in the July 5, 2007 death of Debra Vigneau of Somers.

William C. Walters Police said Walters had been having an affair with Vigneau, 50, when they got into an argument by the river in South Windsor last year. Police said Vigneau, concerned that Walters was seeing another woman behind her back, threatened to throw his car keys in the river if he didn't tell her whom he had been talking to on his cellphone.

Police said Vigneau also threatened to report their affair to Walters' wife. He responded by lunging at her and killing her.

Police found Vigneau's body in some brush on the side of Vibert Road, which leads to the dock. They found Walters soon afterward at the Windsor Locks home of another woman he had been seeing. That woman told police that he showed up with blood on his clothes and tried to wash the blood off with a shower, police said.

Court records show that Walters has an extensive criminal record and was on parole through 2010 in connection with a 2003 arrest charging him with escape, first-degree larceny and failure to appear in court.

In a statement to police after the killing, Walters' wife, Rose Walters, said her husband had called her shortly afterward and told her that he had killed someone because she had been picking on him, police said.

By CHRISTINE DEMPSEY | Courant Staff Writer

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NORWALK — Three Bridgeport men have accepted plea deals on charges involving the firing of a paint ball gun at a Westport police officer.
The incident occurred after Officer Richard Bagley stopped a car with a defective license plate light on April 10. When Bagley walked up to the vehicle, its rear hatch opened and one man fired a paint ball gun at him.

Police say that thinking he was under fire, Bagley dove to the ground.

Twenty-five-year-old Jaret Ortiz, 19-year-old Juan Carlos Trinidad-Cosme and 20-year-old Octavio Real were facing more than 20 years in prison.

In court Monday, Ortiz pleaded guilty to assault on a police officer and is facing a maximum of six years.

The other two suspects face a maximum two years in prison.

THE ASSOCIATED PRESS

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STAMFORD — After a historic ruling by the U.S. Supreme Court last week, gun advocates in Connecticut can rest assured that their Second Amendment rights are safe.

On June 26, the court ruled 5-4 that a Washington, D.C. handgun ban was unconstitutional and for the first time recognized that the Second Amendment affords individuals the right to own a gun for self-defense and hunting purposes.

"Thank God," said Gary Mammana, former owner of Stamford Archery and Firearms. "I know first hand how state implemented gun laws hurt legal gun owners, not the criminals."

On April 13, 2007 Mammana was escorted from his shop at 379 Shippan Ave. by two state police officers for selling what state officials told him were legal guns. The charges against Mammana were later dropped and expunged from the records after he agreed to an accelerated rehabilitation, he said. However, his business never recovered. He was soon forced to shut down.

"I opened up my gun shop against the advice of a lot of people. Selling guns isn't a lucrative business because of the country's feelings toward guns," he said.
Although state and city legislators say the supreme court's ruling won't effect Connecticut's current gun laws, Mammana hopes it will.

"I'll bet somebody brings suit against the state of Connecticut as a result [of the court's ruling]," he said.

"As far as the supreme courts decision, we don't expect any impact for Connecticut," said Ron Pinciaro, a spokesman for Connecticut Against Gun Violence. Where issues could arise are in cities and states with stricter gun laws like San Francisco, New York and Chicago, he said.

State Rep. William Tong, D-147, said that Connecticut's gun laws are in line with most other jurisdiction's and that the court's decision should have little baring on Connecticut.

"What this [ruling] means is that Connecticut can continue to do what it needs to do to prevent unnecessary gun violence," he said.

Tong has advocated for stricter gun laws in Connecticut. His Lost and Stolen Firearms bill, which requires gun owners to report a lost or stolen firearm within 72 hours since it went missing, recently passed and became law.

The Second Amendment states "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

Writing for the majority, Justice Antonin Scalia wrote, "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

While Mammana agrees with the more obvious state implemented restrictions placed on legal gun owners, he believes upholding the U.S. constitution should be first priority.

"Most states that have these bans are violating the Second Amendment," he said. "This was a victory, but legal gun owners need to continue to speak out."

By CHASE WRIGHT

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HARTFORD, Conn. - Almost a year after a deadly break-in that ended with the deaths of three members of a Cheshire family, a host of new criminal justice-related laws take effect on Tuesday.

Some of the legislation was passed during a special session of the General Assembly in January that was convened as a result of the deaths of 48-year-old Jennifer Hawke-Petit and her two daughters, Hayley, 17, and Michaela, 11.

For example, there are changes to how the state's Board of Pardons and Paroles operates and the creation of a new criminal justice database.

Another new law sets aside nearly $10 million to boost staffing at criminal justice agencies. It will add correction and parole officers, more probation officers to monitor sex offenders and more staff for the state police major crime squads.

Funding also is available to expand a global positioning system (GPS) that monitors offenders on parole. And more alternative housing is provided for offenders.

"We cannot put a price on public safety, but these resources will go a long way to help ensure the security and peace of mind of the citizens of Connecticut," Gov. M. Jodi Rell, a Republican, said in a statement.

Two parolees are charged with capital felony and multiple murder, kidnapping, sexual assault and arson charges in connection with the July 23 killings of the Petit mother and daughters. Dr. William Petit was severely beaten, but survived.

Joshua Komisarjevsky, 27, of Cheshire, and Steven Hayes, 44 of Winsted, have both pleaded not guilty. The next court hearing is scheduled for July 18.

A new crime of "home invasion," which stems from the Cheshire incident, became effective on March 1.

Among other new laws that take effect on Tuesday:

- Extending eligibility for admission to the state's Veterans Home in Rocky Hill to veterans and current members of the armed forces who are entitled to retirement pay under federal law. They and their spouses also will be eligible for burial in the state veterans' cemeteries.

- Requiring the Department of Environmental Protection come up with regulations for a new recycling program for electronics equipment such as computers and TVs, which is scheduled to begin in 2009.

- Prohibiting public schools from issuing out-of-school suspensions. The new law also extends the maximum length of in-school suspensions from five to 10 days.

- Allowing local school boards to provide credit for a world-language course provided by a nonprofit organization if the student passes a proficiency test. The new law stems from a popular program in New Britain where students learn Polish after school.

- Requiring most cigarettes sold or offered for sale to consumers in Connecticut be fire-safe. They must be designed to be self-extinguishing.

- Allowing some parents who pursue higher education or employment to receive child care subsidies under the Department of Social Services' Care 4 Kids program. To be eligible, they must have incomes below 50 percent of the state's median income.

Associated Press
June 30, 2008

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NEW HAVEN, Conn. - Six of the 13 judges on the 2nd U.S. Circuit Court of Appeals have asked the nation's highest court to hear a reverse discrimination case filed by 20 New Haven firefighters, a move some legal observers are calling unusual.

The judges on the New York-based court said the case raises legal questions that may have national implications.

A three-judge panel of the court upheld a lower court's dismissal of the case earlier this month, which prompted an unsuccessful effort by other judges to have all 13 members of the court hear the case.

Nineteen white firefighters and one Hispanic firefighter sued the city in 2004. They said they would have been promoted if the city hadn't thrown out the results of two tests for lieutenant and captain because too few minorities scored high enough to move up in rank.

New Haven officials claimed the exams were unfair to minority firefighters and the city faced potential discrimination lawsuits if it went ahead with the promotions.

Scores on the exams indicated that no blacks would be promoted. Fourteen of the top 15 candidates for lieutenant and captain were white, based on scores.

The lawsuit, Ricci v. DeStefano, alleges the city violated the 20 firefighters' civil rights because the decision to scrap the exams was based on race.

The six judges who asked the Supreme Court to hear the case took no position on the merit of the firefighters' allegations. They did, however, take issue with what they called the three-judge panel's "tersely adopted" ruling.

"What is not arguable ... is the fact that this court has failed to grapple with the questions of exceptional importance raised in this appeal," said 2nd Circuit Judge Jose A. Cabranes.

Cabranes wrote the dissenting opinion signed by five other judges "in the hope that the Supreme Court will resolve the issues of great significance raised by the case."

The judges who supported dismissing the case claimed some of Cabranes' arguments were unfair and mistaken.

Judge Barrington D. Parker said the three-judge panel believed that New Haven federal Judge Janet Bond Arterton had provided a thoughtful and careful review of the firefighters' claims to the appeals court.

"Nothing more is required," he wrote.

Karen Torre, a lawyer for the firefighters, said the six judges' request to the U.S. Supreme Court was a significant development in a case that is important to first responders nationwide.

"No matter what the outcome of this case on its legal merits, the judges' call for full judicial review, in a responsible and transparent manner, has done much to help restore my clients' and the public's confidence in the courts," she said.

Central to the case is whether municipalities can disregard promotion exam results because they yielded too many qualified applicants of one race and not enough of another.

"It raises complicated, difficult issues that really have not yet been answered by any settled body of existing legal precedent," said Hartford attorney Steven Ecker, who specializes in appellate work.

Jessica Mayorga, a spokeswoman for New Haven Mayor John DeStefano, said the city does not comment on pending litigation.

The fact that the six dissenting 2nd Circuit judges have asked the U.S. Supreme Court to hear the case is unusual, but not unprecedented, said John Williams, a New Haven civil rights attorney.

"I think it's highly likely that Karen (Torre) is going to be going to Washington

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R. Kelly Not Guilty
By Rhonda Swan | Friday, June 13, 2008, 04:37 PM

A jury just acquitted R & B hit maker R. Kelly of child pornography, deciding he is innocent of videotaping himself having sex with an underage girl.

I think I’m the only person I know who hasn’t seen the video. Everyone I know who did swears it was him.

Clearly, the jury believed R’s defense that the man having sex with the 13-year-old girl couldn’t have been Kelley cause he didn’t have a mole on his back.

Kelly does.

“The truth be told, there is no mole … that means one thing,” Kelly’s lawyer told jurors. “It ain’t him. And if it ain’t him, you can’t convict.”

The jurors took the sex tape to the jury room where a monitor was set up so they could review it.

Over seven days presenting their case, prosecutors called 22 witnesses, including several childhood friends of the alleged victim and four of her relatives who identified her as the female on the video.

In two days, the Grammy winner’s lawyers called 12 witnesses. They included three relatives of the alleged victim who testified they did not recognize her as the female on the tape.

It took six years to get this far, but it’s finally over.

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DENVER -- A Texas judge today allowed parents to begin retrieving more than 400 children who were taken by the state during a raid on a polygamous sect's compound in April. Texas District Judge Barbara Walther issued the order in the wake of a state Supreme Court ruling last week that the state had overreached when it moved the children into protective custody. Officials fear sect members may flee Texas asks state justices to overturn polygamy sect ruling Texas had no right to seize sect children, appellate court says Walther on Friday had refused to sign an agreement between the state and attorneys for the Fundamentalist Church of Jesus Christ of Latter-Day Saints that would have provided for the release of the children. She said it did not provide enough safeguards against the families fleeing the state.

The FLDS long ago broke away from the mainstream Mormon Church, which banned polygamy in 1890. The sect has about 10,000 members, mostly along the Utah-Arizona border. Its spiritual leader, Warren Jeffs, is serving a term of five years to life after being convicted last year in Utah of forcing a 13-year-old girl to marry her 19-year-old cousin.

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The use of code words by those involved with narcotics sales and distribution is common. How does the government prove, at trial, whether the code is actually a code? In addition, how does the government show the meaning of the code words?
The courts have long recognized that drug dealers seldom negotiate the terms of their transactions with the same clarity as business persons engaged in legitimate transactions. Drug dealers rarely speak openly about their trade; instead, they often engage in a so-called narcotics code. United States v. Cancelmo, 64. F.3d 804 (2d Cir.1995). Given the attempts of drug dealers to disguise the content of their discussions as legitimate subject matters, courts may allow witnesses to "decipher" the codes drug dealers use and testify to the true meaning of the conversations. Testimony about the meaning of alleged code is admissable as lay opinion testimony under Fed. R. Evid. 701.
In addition, an expert may provide testimony interpreting drug code words, but this is distinguishable from the lay person testimony. The point being, the government can attempt to prove the meaning of drug code words by eliciting testimony from a person who supposedly understood the code. As always, this is not a substitute for legal advice. Please consult with an attorney when charged with a crime.

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Given the recent changes to the Immigration and Nationality Act, is it constitutionally adequate to simply state, at the time of the entrance of a guilty plea, that the plea "could" result in immigration consequences. More specifically, is it ineffective assistance of counsel if the attorney merely states that immigration consequences could result?

First, in order to establish ineffective assistance of counsel in the context of a guilty plea, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. United States v. Cuoto, 311 F.3d 179, 187 (2d Cir. 2002) .

The Second Circuit Court of Appeals has held that an attorney's failure to inform a defendant of the immigration consequences of a guilty plea does not constitute ineffective assistance of counsel, see United States v. Santelises, 476 F.2d 787, 704 (2d Cir. 1975) (per curiam), but that an attorney's affirmative misrepresentation about the deportation consequences of a guilty plea can constitute ineffective assistance, see Couto, 311 F.3d at 188.

In a case I recently argued before the Second Circuit Court of Appeals, the court followed the Santelises court's reasoning in holding that Petitioner was not denied effective assistance of counsel when his attorney advised him that his guilty plea could have immigration consequences. The court further reasoned that the statements "could result" in deportation and that he "may be deported" were not misleading but rather were an accurate statement about the situation. Thus, Petitioner was not denied ineffective assistance of counsel.

As general advice, before entering a plea, always check with counsel. The immigration consequences can be significant.

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If you have been convicted of a certain crime in Connecticut, then you have a criminal record. This means that anytime someone conducts a background check, they can see that you were convicted of a crime. This can have many adverse consequences including the loss of employment opportunities. So what can you do about this record? Is it permanent or can it be erased. The following will help you clear your background.

Expungement Pardon: You may apply to the Board for expungement (erasure of the official criminal record) THREE (3) YEARS after the date of the disposition of one’s most recent misdemeanor conviction and/or FIVE (5) YEARS after the date of the disposition of one’s most recent felony conviction. Please be aware that you cannot apply for expungement for one offense and not another, as only your full criminal history will be considered for an expungement pardon.

Expungement Pardon:Provisional Pardon: A provisional pardon is for employment purposes only and does not erase your criminal history. You may apply for a provisional pardon at any time, but if you are currently under any form of criminal justice supervision you are also required to submit a
Supervising Officer Questionnaire completed by your current parole/probation officer. That form can be obtained at www.ct.gov/doc/bopp. If you are applying for expungement, you must indicate on the application that you also wish to be considered for a provisional pardon in the event your petition for expungement is denied.

This is just general information and is never a substitute for sound legal advice from a Connecticut attorney. As always, when you are charged with a crime, seek the assistance of counsel.

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If you have received an offer from the state's attorney and are willing to enter a plea to the charge(s), Practice Book Sec. 39-19 provides the requirements for such a plea.

That section provides that the court shall not accept a plea without first addressing you personally in court. Next, the court must determine whether you fully understand: (1) nature of the charge(s); (2) mandatory minimums; (3) the fact that the statute does not permit the sentence to be suspended; (4) maximum possible sentence on the charge, including, if applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; (5) the fact that you have the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at trial you have the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate yourself.

This is general advice and may change depending on the facts of your case. As always, consult with an attorney when charged with a crime.

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