It depends on what “unlawfully remains” means


Lookin' goooood!

So the other day, I went to Miranda’s house. While there, I noticed she had a new iPod Nano. The thing looked damn good. So I thought I’d get myself one. Then I remembered that I was a public defender and I didn’t make much money. So I started thinking. What if I took it and didn’t tell her? What if I took it and didn’t return it? What if I took it and then I thought better of it and put it back, all without her knowing?1

What crime would I be guilty of? (Yes, I am that nerdy.)

There is an easy answer and a difficult question. The easy answer, of course, is Larceny in the Sixth Degree, a C misdemeanor. The difficult question, however, is whether I am guilty of Burglary.

The burglary statutes have several common elements. Judging by the title of this post, you know which one I want to focus on. Here’s the entire Burglary 2nd statute:

A year older and sadder

So I’m not talking to any of you. It was my birthday yesterday and no one wished me. (Well, two people did. Thanks Skelly and the other person who knows who he is.) Oddly, the exact same thing happened last year. I’m beginning to believe that you people don’t care about me – and it’s evidenced by the disrespect I’ve been getting in various parts of the country. Just for that, I want you all to stare into my eyes and beg for forgiveness (and no, I will not put it behind a cut):


Depends on what “actually present” means

Last year, in the wake of the Cheshire murders, the legislature got it into their heads that our current Burglary statutes weren’t sufficient to prosecute the act of a home invasion1. While not true, they felt there had to be some response to the murders and as a result, passed the home invasion statute.

There isn’t much difference between the Burglary statute and the “home invasion” statute. But let’s take it one step at a time. Here are the elements of the home invasion statute:

  1. A person
  2. Enters or remains unlawfully
  3. In a dwelling
  4. While a person other than a participant
  5. Is “actually present” in that dwelling
  6. The “offender” has the intent to commit a crime
  7. AND
  8. In the course of committing “the offense”
  9. either commits or attempts to commit a felony
  10. against “the person” of 4 & 5 above
  11. OR
  12. the “offender” is armed with explosives or a DW or a DI
  13. “course of committing” is either an act or attempt
  14. or in flight thereafter.

More, including a poll, after the jump.

When is an assault not an assault?

When it’s a strangulation. Yes, as of 2008, the Connecticut legislature has created the crime of “Strangulation” (I’d link to it, but it isn’t up on the website yet).

Is it redundant? What does it really mean? Let’s find out! The first step, of course, is to conduct an elements analysis. There are two degrees of strangulation, both felonies. Let’s start with Strangulation in the First Degree:

(a) A person is guilty of strangulation in the first degree when such person commits strangulation in the second degree as provided in section 53a-64bb and (1) in the commission of such offense, such person (A) uses or attempts to use a dangerous instrument, or (B) causes serious physical injury to such other person, or (2) such person has previously been convicted of a violation of this section or section 53a-64bb.

Huh? Okay, let’s look at Strangulation in the Second Degree (53a-64bb):

(a) A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.

Here’s what I don’t understand. How do you commit strangulation in the second degree without using a “dangerous instrument”? Especially in light of the fact that hands (or fists or feet or limbs) may be “dangerous instruments”:

Now Hiring

[Note: This is a “sticky” post. There may be more recent posts beneath this one.]

To: Connecticut Public Defenders

From: Management

Re: Job opening

You people would make terrible eyewitnesses

The poll results from the eyewitness ID poll reveals either that I’ve got a bunch of non-attentive readers or (more likely) that there’s no way anyone can identify anyone from that array. They all looked the same to me, btw.

So, for those of you interested in the “answer”, it’s after the jump.

Listen up!

We talk a lot, as lawyers. It’s in our job description. The old classic misnomer is that if you can debate or argue well, you’ll make a good lawyer. We do it all the time: we talk to judges, we talk to clients, we talk to each other. Talk, talk, talk. It gets exhausting after a while.

The one thing no one tells us to do, or teaches us to do, is listen. Listening is just as important as talking in our line of work (in any, really). Over the past month, I’ve seen clients get angry at their lawyers because the lawyers didn’t listen, I’ve seen lawyers lose out on good deals because they didn’t listen to judges.

It isn’t that hard, or is it? Are we that ego-centric that all we care about is spewing our bit and then watching it waft into the world, while the important information from those around us misses us.

It really is the death-knell for a good lawyer – the inability to listen.

I was already resolute in my decision to listen, but the past month has made me that much more sure. Try it sometime; it might surprise you.