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State v. Jordan
STATE OF CONNECTICUT v. ZYRON AMIR JORDAN
(AC 47193)
Cradle, C. J., and Clark and Harper, Js.
Syllabus
The defendant appealed to this court from the trial court’s judgments finding
him in violation of probation in two criminal dockets and revoking his
probation. The defendant, a passenger in a motor vehicle owned and driven
by a friend, was arrested and charged with interfering with a police officer
pursuant to statute (§ 53a-167a) for his conduct during a motor vehicle stop
and for possession of narcotics with intent to sell and criminal possession
of a firearm for items found in a backpack in the backseat of the vehicle.
The court determined that the defendant constructively possessed the contraband in the backpack and had interfered with the lawful duties of a police
officer, all of which constituted conduct that violated the conditions of the
defendant’s probation. The defendant claimed that there was insufficient
evidence for the court to find that he had violated the conditions of his
probation. Held:
The trial court’s determination that the state had produced sufficient evidence that the defendant had violated § 53a-167a and, thus a condition of
his probation, was not clearly erroneous, as the court’s finding that the
defendant’s conduct in failing to comply with the police officers’ commands
and in resisting their efforts to place him in handcuffs had hampered the
activities of the police in the performance of their duties was supported by
the record evidence.
The trial court erred in determining that the defendant was in constructive
possession of the illegal drugs or the firearm that were found in the vehicle,
as there was nothing in the record to support the finding that the defendant
exercised dominion and control over the contraband.
This court concluded that a remand for resentencing was appropriate in
light of the trial court’s statements at the outset of the dispositional phase
of the probation revocation hearing that the defendant had previously been
convicted for offenses involving the possession and sale of illegal drugs and
that it had rejected the defendant’s claim that he had not possessed the
contraband in the backpack, as this court could not be confident that the trial
court would not have exercised its discretion differently had it sentenced
the defendant solely on the basis of a violation of probation for interfering
with an officer, for which there was sufficient evidence in the record.
Argued March 20—officially released November 4, 2025
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State v. Jordan
Procedural History
Informations charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Waterbury, geographical area number four,
and tried to the court, Klatt, J.; judgments revoking the
defendant’s probation, from which he appealed to this
court. Reversed in part; further proceedings.
Judie Marshall, assigned counsel, for the appellant
(defendant).
Lena A. Arnold, special deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Marc Ramia, senior assistant
state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Zyron Amir Jordan,1
appeals from the judgments of the trial court finding
him in violation of probation under General Statutes
§ 53a-32. On appeal, the defendant principally claims
that there was insufficient evidence that he violated
his probation. We disagree with this claim. However,
because we conclude that one of the two grounds on
which the court found the defendant in violation of his
probation was not supported by sufficient evidence,
and because we cannot be confident that this error did
not impact the sentences it imposed, we set aside the
defendant’s sentences and remand the matter for resentencing.2
1
We note that in certain documents in the court file, the defendant’s first
name is spelled ‘‘Zy’ron.’’
2
The defendant also claims on appeal that the court abused its discretion
in revoking his probation and ordering him to serve the full unexecuted
portion of his sentence of eight years of incarceration. In light of our disposition, we do not reach the merits of this claim. See, e.g., State v. Sykes, 232
Conn. App. 753, 755 n.1,
337 A.3d 1174, cert. denied,
353 Conn. 906,
A.3d (2025); State v. Johnson, 75 Conn. App. 643, 658,
817 A.2d 708 (2003).
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State v. Jordan
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. On
December 11, 2019, the defendant pleaded guilty to
the sale of narcotic substances in violation of General
Statutes § 21a-277 (a) (1) (A) in Docket No. U04W-CR-XX-XXXXXXX-S. On February 7, 2020, the court sentenced
the defendant in that docket to six years of incarceration, execution suspended after eighteen months, and
four years of probation. On November 29, 2021, the
defendant pleaded guilty to possession of narcotics with
intent to sell in violation of § 21a-277 (a) (1) (A) in
Docket No. U04W-CR-XX-XXXXXXX-S. On March 1, 2022,
the court sentenced the defendant in that docket to
eight years of incarceration, execution suspended, and
three years of probation. In addition to the standard
conditions of probation, the court imposed special conditions of probation in each docket, including that the
defendant not possess weapons or narcotics. These sentences ran concurrently.
On September 30, 2022, while on probation, the defendant was sitting as a passenger in a Monte Carlo motor
vehicle that was parked facing the wrong direction on
River Street in Waterbury. Police officers assigned to
the Crime Prevention Unit (CPU) of the Waterbury
Police Department observed this vehicle. Two marked
police cars, each with three members of the police
department all wearing standard police uniforms,
parked at an angle to prevent the vehicle from leaving.
One police car parked in front of the vehicle, and the
other behind it. The police car in the front had activated
its overhead emergency lights.
Khazirr Norwood, the driver of the vehicle, in an
attempt to flee, drove the vehicle in reverse, striking
the police car behind him, then went forward, hitting
the police car with its lights on. Anthony Porzio, a police
officer who had been sitting in the passenger seat of
the police car positioned in front, then exited the police
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State v. Jordan
car and approached the passenger door of the vehicle.
Porzio ordered the defendant to exit the vehicle. The
defendant did not comply and, after several requests
and attempts to open the passenger door, Porzio broke
the passenger front window and, with the assistance
of another officer, removed the defendant from the
interior of the vehicle. The defendant had not made any
attempt to exit the vehicle or to comply with Porzio’s
commands. After he was removed from the interior of
the vehicle, the defendant tensed and pulled his arms
away from the officers, making it difficult for the officers to place him in handcuffs.
After officers removed Norwood from the vehicle,
they conducted a search of its interior. In the center
console between the driver and passenger seats, the
officers observed empty plastic baggies and two ‘‘colorful pills,’’ which they believed to be ecstasy.3 The officers also discovered a backpack located in the floor
area of the passenger side rear seat. This backpack
contained fifty-six individually packaged plastic bags
3
See, e.g., State v. Peloso, 109 Conn. App. 477, 483 and 483 n.9,
952 A.2d
825 (2008) (MDMA, also known as ecstasy, is controlled substance that is
central nervous system stimulant that produces heightened sensitivity to
sensory stimulation, hallucinations, altered perceptual sense, increased
energy, euphoria and empathy); United States Drug Enforcement Administration, ‘‘Ecstasy or MDMA (also Known As Molly),’’ available at https://
www.dea.gov/factsheets/ecstasy-or-mdma-also-known-molly (last visited
October 24, 2025) (ecstasy acts as both stimulant and hallucinogen, providing
energizing effect, distortions in time and perception, and enhanced enjoyment of tactile experiences).
Porzio testified that, on the basis of his training and experience, the two
pills found in the center console were consistent with the appearance of
ecstasy. He acknowledged that it was not confirmed by chemical testing
that these pills were, in fact, ecstasy. We note that the trial court did not
make a specific finding as to whether these two pills were, in fact, ecstasy.
Instead, it concluded that the plastic baggies and two colorful pills found
in the center console of the vehicle were consistent with evidence of the
sale of or possession with intent to sell controlled substances. Additionally,
the parties have not addressed in this appeal whether these pills were, in
fact, a controlled substance.
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State v. Jordan
of marijuana totaling 239 grams, and a nine millimeter
firearm.
The defendant was arrested for, inter alia, interfering
with a police officer, criminal possession of a firearm,
possession of marijuana with intent to sell, and possession of a hallucinogenic substance.4 He subsequently
was charged, in two separate dockets, with violating
his probation under § 53a-32. The arrest warrant applications alleged that the defendant violated the standard
condition of probation to not violate any criminal law
of the United States, this state, or any other state or
territory, as well as the court-ordered special condition
of probation prohibiting him from possessing weapons
or narcotics. The trial court, Klatt, J., conducted a revocation of probation hearing over the course of two days
on October 4 and 5, 2023. The state presented evidence
from a probation officer, Hiley Jackson, and four police
officers of the Waterbury Police Department: Anthony
Porzio, Wilfredo Gonzalez, David Shaban, and Michael
Nicol. The defendant did not testify, but called Norwood
and Norwood’s mother, Sharnica Norwood, as witnesses.
In an oral decision, the court concluded that the state
had met its burden of showing, by a preponderance of
the evidence, that the defendant had violated the terms
of his probation. Specifically, it found that the defendant
constructively possessed the firearm and illegal drugs
and that he interfered with the lawful duties of a police
officer, all of which constituted conduct that would
amount to violations of the conditions of his probation.
During the dispositional phase, the court indicated that
the defendant previously had been convicted of
offenses related to the illegal sale of drugs. It further
stated that the defendant had access to a firearm and
4
These charges remain pending at this time. See State v. Jordan, Superior
Court, judicial district of Waterbury, Docket No. CR-XX-XXXXXXX-S.
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State v. Jordan
illegal drugs and resisted the efforts of the police to
place him under arrest. Ultimately, the court concluded
that the defendant was not amenable to supervised
probation, imposed the suspended portion of the sentences in both underlying criminal dockets, and ordered
the defendant to serve a total period of eight years of
incarceration.5 This appeal followed. Additional facts
will be set forth as necessary.
The defendant claims that there was insufficient evidence that he violated the conditions of his probation.
We disagree with this claim because, of the two grounds
set forth by the trial court for finding the defendant in
violation of his probation, one, we conclude, is supported by sufficient evidence. Specifically, we conclude
that the state presented sufficient evidence for the court
to find by a preponderance of the evidence that the
defendant had interfered with a police officer in the
performance of his lawful duties and, thus, violated
General Statutes § 53a-167a. However, because the evidence does not support the court’s conclusion that he
constructively possessed the illegal drugs or firearm
found in the vehicle, and because we cannot be confident that this improper determination did not impact
the sentences imposed by the court, we set aside the
defendant’s sentences and remand the cases for resentencing.
The following principles guide our review of the
defendant’s claim. A probation revocation proceeding,
5
The trial court imposed a sentence of three years of incarceration in
Docket No. U04W-CR-XX-XXXXXXX-S, to run concurrently with the imposed
sentence of eight years of incarceration in Docket No. U04W-CR-20-
0492997-S.
‘‘In determining whether to revoke probation, the trial court shall consider
the beneficial purposes of probation, namely rehabilitation of the offender
and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need
to protect the public.’’ (Internal quotation marks omitted.) State v. Santos
T., 146 Conn. App. 532, 535,
77 A.3d 931, cert. denied,
310 Conn. 965,
83
A.3d 345 (2013).
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State v. Jordan
civil in nature, does not require all of the procedural
components associated with a criminal proceeding.6
State v. Dunbar, 233 Conn. App. 297, 310,
339 A.3d 642
(2025); State v. Taveras, 219 Conn. App. 252, 265–66,
295 A.3d 421, cert. denied,
348 Conn. 903,
301 A.3d 527
(2023). ‘‘[A]ll that is required in a probation violation
proceeding is enough to satisfy the court within its
sound judicial discretion that the probationer has not
met the terms of his probation.’’ (Internal quotation
marks omitted.) State v. Sykes, 232 Conn. App. 753, 769,
337 A.3d 1174, cert. denied,
353 Conn. 996, A.3d
(2025).
Additionally, we note that ‘‘revocation of probation
hearings, pursuant to § 53a-32, are comprised of two
distinct phases, each with a distinct purpose. . . . In
the evidentiary phase, [a] factual determination by a
trial court as to whether a probationer has violated a
condition of probation must first be made. . . . In the
dispositional phase, [i]f a violation is found, a court
must next determine whether probation should be
revoked because the beneficial aspects of probation
are no longer being served. . . . Since there are two
distinct components of the revocation hearing, our standard of review differs depending on which part of the
hearing we are reviewing. . . .
‘‘Because the present case concerns the evidentiary
phase and the trial court’s factual finding that the defendant violated his probation, we are guided by the standard of review applicable to that phase. . . . It is also
6
We have explained that ‘‘[p]robation is, first and foremost, a penal alternative to incarceration . . . . [Its] purpose . . . is to provide a period of grace
in order to aid the rehabilitation of a penitent offender; to take advantage
of an opportunity for reformation which actual service of the suspended
sentence might make less probable. . . . [P]robationers . . . do not enjoy
the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation]
restrictions. . . . These restrictions are meant to assure that the probation
serves as a period of genuine rehabilitation and that the community is
not harmed by the probationer’s being at large.’’ (Internal quotation marks
omitted.) State v. Esquilin, 179 Conn. App. 461, 469,
179 A.3d 238 (2018).
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State v. Jordan
well settled that a trial court may not find a violation
of probation unless it finds that the predicate facts
underlying the violation have been established by a
preponderance of the evidence at the hearing—that is,
the evidence must induce a reasonable belief that it is
more probable than not that the defendant has violated
a condition of his or her probation. . . . In making its
factual determination, the trial court is entitled to draw
reasonable and logical inferences from the evidence.
. . . Accordingly, [a] challenge to the sufficiency of the
evidence is based on the court’s factual findings. The
proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. . . .
A court’s finding of fact is clearly erroneous and its
conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court’s finding of fact] . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed. . . . In
making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.’’
(Citations omitted; internal quotation marks omitted.)
State v. Maurice M., 303 Conn. 18, 25–27,
31 A.3d 1063
(2011); see generally State v. Orr, 199 Conn. App. 427,
434, 237 A.3d 15 (2020) (primary purpose of probation
proceeding is to determine whether defendant is complying with terms of probation, and appellate review
distills to review of reasonableness of two findings,
first, whether there was violation of probation condition
and second, whether probation should be revoked
because its rehabilitative purposes are no longer being
served).
On appeal, the defendant argues that the evidence
was insufficient to support the court’s findings that
he interfered with the police and was in constructive
possession of the firearm or the illegal drugs located
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State v. Jordan
in the vehicle. The state counters that, in viewing the
totality of the evidence and reasonable inferences
drawn therefrom, the trial court reasonably could have
found, by a preponderance of the evidence, that he
violated the terms of his probation. In order to resolve
this claim, a detailed review of the evidence presented
at the probation revocation hearing is required.
The state first called Jackson, the defendant’s probation officer, as a witness. He testified that the conditions
of probation were reviewed with the defendant for both
of his criminal dockets. One of the standard conditions
of probation is: ‘‘Do not violate any criminal law of the
United States, this state or any other state or territory.’’
Additionally, in Docket No. U04W-CR-XX-XXXXXXX-S, the
court ordered the following special conditions of probation: ‘‘1. Substance abuse evaluation/treatment; 2. Random Urines; 3. Possess no weapons or narcotics.’’
(Emphasis added.) In Docket No. U04W-CR-XX-XXXXXXXS, the court ordered him to ‘‘abide by all and any court
ordered conditions.’’ The defendant signed both of the
conditions of probation forms. Following the defendant’s September 30, 2022 arrest and his review of the
police report, Jackson determined that certain conditions of probation had been violated. Specifically, Jackson opined that the defendant had violated a criminal
law and had possessed a weapon and narcotics. As
a result, Jackson prepared an arrest warrant for the
defendant.
Next, the state called Porzio as a witness. Porzio was
working as a member of the CPU on September 30,
2022. Porzio testified that, at approximately 10 p.m. that
night, he was patrolling in a marked police car. At this
time, Sergeant Christopher Carpeniteri of the Waterbury Police Department was driving, Porzio was seated
in the front passenger seat, and Gonzalez was in the
backseat. While traveling northbound on River Street,
the patrolling officers observed a blue Monte Carlo
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State v. Jordan
parked in the southbound lane while facing north. On
the basis of this observation, Carpeniteri moved to park
in front of the vehicle and the police car’s overhead
emergency lights were activated to initiate a traffic stop.
As Porzio exited the police car, Norwood drove in
reverse and struck the other police car that had pulled
in behind the vehicle.
Porzio testified that he shouted at Norwood and the
defendant, ordering them to stop. He approached the
vehicle and attempted to open the passenger side door,
but it was locked. The vehicle drove forward, striking
the police car from which Porzio had exited. Porzio
commanded the occupants of the vehicle to exit and
pulled on the passenger door handle. Porzio again
shouted to Norwood and the defendant, who appeared
‘‘to be stationary, frozen.’’ Unable to gain entry into the
stopped vehicle, Porzio used his flashlight to break the
passenger window. The defendant still did not comply
with Porzio’s continued commands to exit the vehicle.
Porzio grabbed the defendant by the arm and escorted
him out of the passenger seat.
Porzio further testified that, after the defendant was
removed from the vehicle, he was placed in handcuffs
by another police officer. Porzio then entered the passenger side of the vehicle and escorted Norwood from
the driver’s seat. Porzio stated that the defendant did
not comply with his commands until he allowed the
officers to place him in handcuffs. The defendant was
placed under arrest for interfering with an officer based
on his refusal to comply with Porzio’s multiple commands.
Porzio indicated that he then conducted an inventory
search of the vehicle prior to having it towed from the
scene.7 He located plastic bags containing ‘‘two colorful
7
‘‘An inventory search is a well-defined exception to the warrant requirement. . . . In the performance of their community caretaking functions,
the police are frequently obliged to take automobiles into their custody.
. . . A standardized procedure for making a list or inventory as soon as
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State v. Jordan
pills’’ inside the cup holder of the front center console.
Additionally, he found a backpack in the rear seat
behind the passenger seat of the vehicle that contained
a firearm and plastic bags of what appeared to be marijuana. Subsequent testing indicated a presumptive positive result that the green leafy substance in the plastic
bags inside the backpack was marijuana. Porzio had
the pills, the plastic bags, the marijuana, and the firearm
seized by the officer in charge of evidence collection.
At the outset of cross-examination, defense counsel
played a video recording from Porzio’s body camera
in an attempt to demonstrate inconsistencies between
Porzio’s testimony and the video recording from his
body camera.8 The video, however, did not depict a
reasonable after reaching the stationhouse not only deters false claims but
also inhibits theft or careless handling of articles taken from the arrested
person.’’ (Internal quotation marks omitted.) State v. Vallejo, 102 Conn. App.
628, 640,
926 A.2d 681, cert. denied,
284 Conn. 912,
931 A.2d 934 (2007); see
also South Dakota v. Opperman, 428 U.S. 364, 368–76,
96 S. Ct. 3092,
49 L.
Ed. 2d 1000 (1976).
8
The video recording from Porzio’s body camera began with no sound
and depicted Porzio sitting in the interior of a moving police car while
holding a flashlight in his right hand. As the vehicle came to a stop and
Porzio rapidly exited, the audio recording engaged. As Porzio rapidly walked
behind the police car and approached the vehicle, he is heard issuing the
following command: ‘‘Stop, stop.’’ He unsuccessfully attempted to open the
passenger door of the vehicle. Other voices are heard as the vehicle moved
forward and struck the police car from which Porzio had exited. Porzio
again approached the passenger door of the vehicle and appeared to order
the occupants to get out. After another failed attempt to open the passenger
door, Porzio smashed the passenger window. He and another officer then
reached in and grabbed the defendant’s right arm. The camera moved off
of the defendant for a few seconds as the passenger door was opened and
the defendant was taken out of the vehicle. Porzio then removed Norwood
from the driver’s seat, across the center console and out of the vehicle
via the passenger door. Once outside, other officers placed Norwood in
handcuffs.
The recording from the body camera worn by Porzio does not provide a
view that captured every detail of the events during this dangerous and
frenzied police stop, for a variety of reasons, including the rapid movement
of Porzio and his close proximity to the police car and then to the vehicle.
Cf. Scott v. Harris, 550 U.S. 372, 380–81,
127 S. Ct. 1769,
167 L. Ed. 2d
686 (2007) (where video recording captures events in question and clearly
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State v. Jordan
clear view of the defendant as he was placed in handcuffs. Porzio then acknowledged that the vehicle was
moving for only a few seconds. He also stated that,
after attempting to open the door and instructing the
defendant to exit, he smashed the passenger window.
He disagreed with defense counsel’s assertion that the
defendant lacked sufficient time to comply with Porzio’s commands. Porzio then clarified: ‘‘I believe [the
defendant] had ample opportunity to open the door and
comply with police throughout the stop.’’ Porzio also
testified that the defendant continued to pull his arm
away after he had reached into the vehicle to restrain
him. Specifically, he stated: ‘‘As I had positive control
of [the defendant’s] hands, he continued to pull as you
can see in the video.’’
Shaban, a police sergeant, testified that, after the
traffic stop had been initiated, he heard various officers
shouting commands at Norwood and the defendant to
open the door and to exit the vehicle. He also opined
that the occupants of the vehicle had been provided
with a reasonable time to comply with the orders before
Porzio shattered the passenger side window with his
flashlight.
Nicol testified that officers instructed the occupants
of the vehicle to stop and to exit and afforded them a
reasonable amount of time to comply with these commands. Nicol further stated that, after Porzio broke the
passenger side window, the defendant continued to not
comply with his instructions. Specifically, Nicol indicated that after he and Porzio had grabbed the defendant’s arms to secure him, the defendant ‘‘was still
contradicts version of events told by party, utterly discrediting that party’s
version of events so that no reasonable jury could have believed it, court
should not rely on ‘‘visible fiction’’ for purposes of ruling on motion for
summary judgment). We are not persuaded, therefore, by the defendant’s
argument that the video demonstrates that he did not interfere with the
officers during this traffic stop.
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State v. Jordan
tensing up and not being fully compliant with us, and
not [letting] himself get out of the vehicle. He began
to tense up his arms. Not fully resisting, but also not
complying with our commands.’’
‘‘Section 53a-167a (a) provides in relevant part: A
person is guilty of interfering with an officer when such
person obstructs, resists, hinders or endangers any
peace officer . . . in the performance of such peace
officer’s . . . duties. Accordingly, [t]he elements of
this crime . . . are (1) a person obstructs, resists, hinders, or endangers, (2) a peace officer, (3) while the
officer is in the performance of his or her duties.’’ (Internal quotation marks omitted.) State v. Lamantia, 181
Conn. App. 648, 654,
187 A.3d 513 (2018), aff’d,
336
Conn. 747,
250 A.3d 648 (2020). ‘‘[T]he four means of
interfering listed in [§ 53a-167a] are not conceptually
distinct, and do not constitute disjunctive methods by
which interfering with an officer can be committed.
. . . Rather, they are merely descriptive of possible
ways that a single crime might be committed.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Aloi, 280 Conn. 824, 832–33 n.13,
911 A.2d 1086 (2007).
Our Supreme Court has explained that ‘‘[t]hose words
[used in § 53a-167a (a)] . . . have a broad scope. By
using those words it is apparent that the legislature
intended to prohibit any act which would amount to
meddling in or hampering the activities of the police
in the performance of their duties. . . . The [defendant’s] act, however, does not have to be wholly or
partially successful . . . [nor must it] be such as to
defeat or delay the performance of a duty in which the
officer is then engaged. The purpose of the statute,
which had its origin in the common law, is to enforce
orderly behavior in the important mission of preserving
the peace; and any act that is intended to thwart that
purpose is violative of the statute. . . . Thus, [t]he
broad intent of § 53a-167a is to prohibit conduct that
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State v. Jordan
hampers the activities of the police in the performance
of their duties . . . .’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Id., 833; see
State v. Silano, 96 Conn. App. 341, 351–52,
900 A.2d
540, cert. denied,
280 Conn. 911,
908 A.2d 542 (2006);
see also In re Adalberto S., 27 Conn. App. 49, 56,
604
A.2d 822 (purpose of § 53a-167a is to ensure orderly
compliance with police during performance of their
duties and any act intended to thwart this purpose constitutes violation of statute), cert. denied, 222 Conn. 903,
606 A.2d 1328 (1992). Our Supreme Court has explained
further that this statute proscribes active or passive
conduct that hinders, obstructs, or impedes a police
officer in the performance of his or her duties. State v.
Aloi, supra,280 Conn. 834.
On appeal, the defendant argues that there was ‘‘no
reliable evidence the defendant obstructed, resisted, or
hindered law enforcement from opening the door of
the vehicle or by failing to get out of the vehicle.’’ He
further asserts that nothing about his behavior indicated
resistance, as he was not in control of the vehicle, and
that there was no time for him to comply with the
commands of the police officers to exit the vehicle.
Finally, he contends it was clearly erroneous for the
court to credit testimony from law enforcement personnel that was ‘‘internally contradictory and differed from
that which was reduced to writing in police reports.’’
We conclude that the trial court, as the arbiter of credibility and fact finder, was free to determine that the
defendant interfered with the police by resisting their
efforts to remove him from the vehicle and place him
under arrest, and, therefore, its determination that the
state produced sufficient evidence, under the preponderance standard, that he violated § 53a-167a (a) was
not clearly erroneous and supported the court’s ultimate determination that he violated the terms of his
probation.
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State v. Jordan
In its oral decision, the court specifically found the
testimony of the police officers to be credible. It
referred to the testimony that the defendant, while not
actively fighting with the police officers, made it difficult to remove him from the vehicle. This type of resistance to efforts to place an individual in police custody
has been found to constitute a violation of § 53a-167a.
See State v. Calabrese, 116 Conn. App. 112, 125–26,
975
A.2d 126 (defendant pulled away from police officers
during handcuffing process), cert. denied, 293 Conn.
933,
981 A.2d 1076 (2009), and cert. denied,
293 Conn.
933,
981 A.2d 1076 (2009); State v. Walters,
111 Conn.
App. 315, 322–23,
959 A.2d 13 (2008) (defendant, after
informing officers that he would resist arrest, straightened arms to make it difficult for officer to lock handcuffs), cert. denied, 290 Conn. 904,
962 A.2d 795 (2009);
State v. Wearing, 98 Conn. App. 350, 352–53,
908 A.2d
1134 (2006) (after police placed handcuff on his left
wrist, defendant became rigid and stiffened his right
arm, and ignored police commands to place right arm
behind his back), cert. denied, 281 Conn. 905,
916 A.2d
47 (2007); State v. Peay,
96 Conn. App. 421, 442–44,
900
A.2d 577 (defendant repeatedly refused commands to
place hands behind back and to go into police cruiser
and physically struggled with arresting police officers),
cert. denied, 280 Conn. 909,
908 A.2d 541 (2006); In re
Adalberto S., supra, 27 Conn. App. 55–56 (respondent
physically resisted police officers, which obstructed
them from achieving their objective, which was to handcuff respondent and place him in custody).
In the present case, the trial court, as the finder of
fact, was free to credit the testimony from the police
officers that the defendant did not comply with their
instructions and resisted their efforts to place him in
handcuffs. There was evidence that the defendant did
not immediately comply with commands to exit, requiring Porzio and Nicol to reach into the vehicle and grab
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the defendant’s arms to secure and remove him from the
interior. Porzio specifically testified that the defendant
continued to pull away after he reached into the vehicle
and grabbed the defendant’s arm. See State v. Cala-
brese, supra,116 Conn. App. 117, 125–26. He further
testified that, in addition to tensing his arms and pulling
away from the officers, the defendant did not exit the
vehicle when directed to do so by the police. Porzio
also testified that the defendant was not compliant until
he had been handcuffed by the officers.
The evidence in the record is sufficient to support
the court’s finding that the defendant’s conduct hampered the activities of the police in the performance of
their duties. See State v. Aloi, supra,280 Conn. 833.
Thus, contrary to the defendant’s argument, there was
sufficient evidence in the record that the defendant
violated § 53a-167a. Additionally, to the extent that the
officers’ testimony was contradictory, we simply note
that ‘‘[i]t is the exclusive province of the trier of fact
to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any
given witness’ testimony.’’ (Internal quotation marks
omitted.) State v. Megos, 176 Conn. App. 133, 142 n.6,
170 A.3d 120 (2017). Given our deferential review of
the facts found by the trial court, and the applicable
burden of proof, which requires that the evidence
induce a reasonable belief that it is more probable than
not that the defendant has violated a condition of his
or her probation; State v. Davis, 229 Conn. 285, 302,
641
A.2d 370 (1994);9 we conclude that the determination
9
See State v. Benjamin, 299 Conn. 223, 235–36,
9 A.3d 338 (2010) (all
that is required in probation revocation hearing is that court is satisfied that
probationer has not met terms of probation by preponderance of evidence
and it is not required that proof of criminal conduct be sufficient to sustain
criminal conviction); State v. Megos, supra,176 Conn. App. 139 (purpose of
probation revocation hearing is not to determine whether defendant had,
beyond reasonable doubt, violated criminal law but rather to determine
whether defendant’s conduct constituted act sufficient to support revocation
of probation and need only be proved by preponderance of evidence).
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State v. Jordan
by the trial court that the state produced sufficient
evidence that he had violated § 53a-167a, and thus his
probation, was not clearly erroneous.
Next, we consider whether the court properly determined that the defendant violated his probation by constructively possessing illegal drugs and a firearm. Porzio
testified that, after the occupants of the vehicle had
been removed and handcuffed, he located ‘‘contraband’’
in the interior of the vehicle. In the front cupholder, he
found two pills that appeared to be ecstasy, and, in
the backseat behind the passenger seat, a backpack
containing fifty-six plastic bags of a green, leaf-like substance that, based on its smell and appearance,
appeared to be marijuana. A firearm also was discovered in the backpack.10 He stated specifically that neither the drugs nor the firearm were found on the defendant’s person. There was testimony that the officers,
based on their training and experience, believed that
the marijuana and ecstasy were packaged for sale.
The defendant called Norwood as a witness. He testified that the illegal drugs and the firearm found in the
vehicle, which was owned by his mother, belonged to
him. Norwood further stated that, in September, 2023,
he had pleaded guilty to charges related to these contraband items. He also claimed that the defendant was
unaware of the presence of these items when he entered
the vehicle six or seven minutes before the police
arrived.
In his argument to the trial court, the prosecutor
acknowledged that ‘‘[t]his has been a constructive possession case from the onset.’’ He claimed, however, that
the defendant had ‘‘access’’ to the pills in the cup holder
and the backpack in the backseat of the vehicle. The
10
Porzio testified that he removed the backpack from the backseat of the
vehicle in order to search it.
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State v. Jordan
prosecutor then argued that Norwood was not a credible witness. Defense counsel countered that there was
no evidence to support a finding that the defendant was
aware of the contraband in the vehicle.
In its oral decision, the court credited the testimony
of the officers, and discredited Norwood’s testimony.
It found that Norwood’s efforts to elude the police
allowed for a reasonable inference that the defendant
knew about the backpack in the backseat. Additionally,
the court explained that the smell of the marijuana
would have alerted the defendant to its presence in the
vehicle. Thus, if the defendant had nothing to do with
the contraband, he would have exited the vehicle and
departed immediately. The court further posited that
the defendant would have exited the vehicle when Norwood was driving into the two police cars if he did not
have any connection to the contraband.
On appeal, the defendant asserts that there was insufficient evidence to support the court’s finding that he
constructively possessed the illegal drugs or the firearm
found in the vehicle. Specifically, he argues, inter alia,
that ‘‘[n]o officers testified to a DNA match to the defendant on the firearm. . . . The state’s evidence did nothing beyond establishing that the defendant was in the
car, thereby providing temporal and spatial proximity
and nothing more to tie the defendant to the contraband. . . . His mere presence in the vehicle is not
enough to establish constructive possession.’’ The state
counters that the evidence and reasonable inferences
drawn therefrom supported the court’s findings of constructive possession of contraband in violation of the
terms of probation. We agree with the defendant.
As we have noted, the court concluded that the defendant violated the terms of his probation by constructively possessing illegal drugs and a firearm. ‘‘The term
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State v. Jordan
[p]ossess means to have physical possession or otherwise to exercise dominion or control over tangible property . . . . General Statutes § 53a-3 (2). We have previously explained that there are two kinds of
possession, actual and constructive. Actual possession
requires the defendant to have had direct physical contact with the [contraband]. . . . Alternatively, constructive possession is possession without direct physical contact. . . . It can mean an appreciable ability to
guide the destiny of the [contraband] . . . and contemplates a continuing relationship between the controlling
entity and the object being controlled. . . . To establish constructive possession, the control must be exercised intentionally and with knowledge of the character
of the controlled object. . . . A person acts intentionally with respect to a result or to conduct described
by a statute defining an offense when his conscious
objective is to cause such result or to engage in such
conduct . . . . General Statutes § 53a-3 (11).
‘‘Moreover, [when] the defendant is not in exclusive
possession of the premises where the [contraband is]
found, it may not be inferred that [the defendant] knew
of the presence of the [contraband] and had control of
[it], unless there are other incriminating statements or
circumstances tending to buttress such an inference.
. . . Such evidence may include, for example, connection with a gun, proof of motive, a gesture implying
control, evasive conduct, or a statement indicating
involvement in an enterprise . . . . Accordingly,
although mere presence is not enough to support an
inference of dominion or control, [when] there are other
pieces of evidence tying the defendant to dominion [or]
control, the [finder of fact is] entitled to consider the
fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances
linking [the defendant] to the crime. . . . [S]ee also
State v. Rhodes, [335 Conn. 226, 241,
249 A.3d 683
(2020)] (some connection or nexus individually linking
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State v. Jordan
the defendant to the contraband is required . . .); State
v. Delossantos, 211 Conn. 258, 278,
559 A.2d 164 ([p]resence alone, unilluminated by other facts is insufficient
proof of possession . . .), cert. denied, 493 U.S. 866,
110 S. Ct. 188,
107 L. Ed. 2d 142 (1989).’’ (Citations
omitted; internal quotation marks omitted.) State v.
Dawson, 340 Conn. 136, 147–49,
263 A.3d 779 (2021). We
emphasize, however, that ‘‘mere [temporal and spatial]
proximity to contraband, in the absence of other incriminating conduct, statements, or circumstances, is insufficient to support a finding of constructive possession.’’
Id., 152; see also State v. Porfil, 191 Conn. App. 494,
527, 215 A.3d 161 (2019), appeal dismissed,
338 Conn.
792,
259 A.3d 1127 (2021); State v. Nova,
161 Conn. App.
708, 724,
129 A.3d 146 (2015).
In the present case, the court found that the backpack
containing the 239 grams of marijuana in fifty-six plastic
bags and a firearm was located on the floor in the rear
seat area of the vehicle directly behind the defendant.
It further found that the two pills and the empty plastic
baggies were located in the center console next to the
defendant. The court stated: ‘‘These items were consistent with evidence of sale or possession with intent to
sell controlled substances.’’ It next rejected the testimony of Norwood, who had claimed that the illegal
drugs and the firearm found in the vehicle belonged
solely to him.11 Next, it remarked that the occupants of
the vehicle shared the intent to elude the police.12
11
We recognize that the court, in its role of the trier of fact, was free to
discredit his testimony. See, e.g., State v. Josephs, 328 Conn. 21, 38,
176
A.3d 542 (2018). The court’s rejection of Norwood’s claim of ownership of
the contraband, however, cannot form the basis of the finding that the
defendant was the individual who possessed these items. See State v. Hart,
221 Conn. 595, 604–605,
605 A.2d 1366 (1992); State v. Coleman,
14 Conn.
App. 657, 671–72,
544 A.2d 194, cert. denied,
208 Conn. 815,
546 A.2d 283
(1988); see generally State v. Carter, 196 Conn. 36, 50,
490 A.2d 1000 (1985)
(Shea, J., dissenting) (trier cannot make affirmative factual finding from
testimony that has been obviously rejected).
12
We cannot discern the basis for the trial court’s remark regarding a
shared intent to elude the police by the defendant and Norwood.
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State v. Jordan
The court then recounted the defendant’s prior convictions for drug-related offenses, and that the officers
had smelled marijuana in the car. It reasoned that, having been inside the vehicle for six to seven minutes, he
must have known that there was marijuana present,
given the odor. The court further stated that, given his
probation status, the defendant would have exited the
vehicle if he had no connection to the contraband.
In determining that the defendant constructively possessed the backpack containing the contraband, the
court appears to have focused on the fact that the defendant must have been aware of its presence due to the
odor of the marijuana. Awareness of a prohibited item,
however, does not equate to possession.13 First, we note
that, ‘‘if the contraband is found in a place where the
defendant does not have exclusive possession, the presence of the defendant near the contraband without
more is insufficient to support an inference of possession.’’ State v. Nova, supra, 161 Conn. App. 719; see
also State v. Williams, 110 Conn. App. 778, 785–86,
956
A.2d 1176 (mere presence is not sufficient to support
inference of dominion and control when illegal drugs
are found in area where defendant does not have exclusive possession and other pieces of evidence were necessary to establish that defendant knew substance in
question was drug, knew of its presence, and exercised
dominion and control of it), cert. denied, 289 Conn. 957,
961 A.2d 424 (2008). Additionally, we emphasize that,
‘‘[t]o mitigate the possibility that innocent persons
13
The mere smell or presence of marijuana in the vehicle would not
necessarily have given the defendant notice or reason to believe that Norwood was engaged in criminal activity. We note that the use and possession
of limited quantities of cannabis has been legal in Connecticut since July
1, 2021. See In re Julien F., Superior Court, judicial district of Windham,
Juvenile Matters at Willimantic, Docket No. CP-19-017958-A (April 25, 2023);
see also General Statutes § 21a-240 (7) and (29) (defining cannabis-type
substance and marijuana); General Statutes § 21a-279a (setting for limits
for legal possession of cannabis).
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State v. Jordan
might be prosecuted for . . . possessory offenses . . .
it is essential that the state’s evidence include more
than just a temporal and spatial nexus between the
defendant and the contraband.’’ (Internal quotation
marks omitted.) State v. Gainey, 116 Conn. App. 710,
721,
977 A.2d 257 (2009). The state was required to prove
that the defendant exercised dominion and control over
the items in the backpack and the center console, in
addition to knowledge of their presence and character.
See id.
There is no evidence, or inference that can be drawn
from the evidence presented at the probation revocation hearing, to establish the defendant’s dominion and
control over the contraband found in the vehicle. In
other words, there is no ‘‘compelling correlation’’
between the defendant’s actions, such as suspicious
movement toward the backpack or the pills, and the
conclusion that he controlled the contraband. State v.
Nova, supra, 161 Conn. App. 722–23. The defendant was
neither the driver nor the owner of the vehicle. Cf. State
v. Winfrey, 302 Conn. 195, 211–13,
24 A.3d 1218 (2011)
(defendant was driver and defendant’s wife was owner
of vehicle where narcotics were found, suggesting
awareness and control of what was inside and, additionally defendant swallowed drugs, was daily user of illegal
drugs, and was in possession of rolling papers and large
amount of cash, all of which supported finding that he
knew of, and exercised dominion and control over said
drugs); State v. Williams, supra, 110 Conn. App. 787–88
(evidence and reasonable inferences drawn therefrom
of cocaine located within arm’s reach of defendant,
who moved his location after police stop in attempt to
distance himself from cocaine, appeared fidgety, gave
police false name and refused to be fingerprinted permitted jury to find defendant constructively possessed
cocaine). No items associated with the sale of illegal
drugs that were found in the vehicle were connected
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State v. Jordan
to the defendant. After Norwood was removed from
the vehicle and placed in handcuffs, when asked what
was in the car, he, and not the defendant, admitted to
the police officers that there was ‘‘weed’’ in the vehicle.
The defendant’s DNA was not found on the firearm. One
of the officers acknowledged that he did not observe
the defendant engage in any illegal activities during the
police stop. In short, from the time of the arrival of the
police until he was removed from the interior of the
vehicle and placed in handcuffs, there was no evidence
linking the defendant to the contraband, aside from its
presence within a backpack on the backseat floor area
and the center console.
We are guided further by this court’s decision in State
v. Fermaint, 91 Conn. App. 650,
881 A.2d 539, cert.
denied, 276 Conn. 922,
888 A.2d 90 (2005). In that case,
the police received a tip from a confidential informant
that a woman in a vehicle parked in a housing project
with two males, including her boyfriend, was in possession of cocaine. Id., 652 After surveilling the vehicle
and observing it drive away, the police effectuated a
traffic stop. Id. The occupants were observed engaging
in furtive movements. Id. The police officer saw the
defendant, who was in the backseat, make a ‘‘bending
movement’’ toward the woman in the passenger seat,
who then put ‘‘something’’ down her pants. Id. The
officer noticed a rocklike substance on the seat next
to the defendant that appeared to be crack cocaine. Id.,
652–53. A subsequent search of the car revealed the
presence of marijuana on the front carpet area. Id., 653.
The woman possessed a plastic bag containing cocaine
and $120 in cash concealed on her person. Id. The
defendant was carrying an address book containing
names that were familiar to the police officers but was
not in possession of drugs and carried only $2 in cash.
Id. The defendant was found to have violated his probation for possession of narcotics. Id.
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State v. Jordan
On appeal, the defendant claimed that there was
insufficient evidence to find that he possessed the
seized contraband. Id., 654. After setting forth the relevant legal principles, we began the analysis of his appellate claim by stating: ‘‘The crumbs of crack cocaine
were not found on the defendant’s person. Furthermore,
he was not in control of the location where the crumbs
were found. The record is devoid of any incriminating
statements made by the defendant. In order to infer
that the defendant in this case knew of the presence
of the narcotics and had control of them, therefore,
there must be circumstances tending to buttress such
an inference.’’ Id., 656. We then noted that the trial
court had relied on the following facts to support the
inference of possession by the defendant: First, he
accompanied the woman who had been the subject of
the report to the police by a confidential informant that
she was in possession of crack cocaine; second, after
the traffic stop, there were furtive movements in the
car, including that the defendant looked back at the
police and leaned toward the woman; third, crumbs of
crack cocaine were found next to the defendant; fourth,
the woman stuffed crack cocaine down her pants; and
fifth, the defendant was carrying an address book containing the names, addresses, and telephone numbers
of individuals familiar to the officers. Id., 656–57.
This court explained that the confidential informant’s
call to the police did not permit the inference that the
defendant knew of the crack cocaine or exercised
dominion and control over it. Id. This tip only alerted
the police that the woman possessed the illegal substance and that the defendant was with her; it did not
provide information that the defendant purchased, sold,
or used cocaine. Id., 657. The subsequent searches confirmed the information provided by the informant, and
that the defendant was not in possession of cocaine,
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State v. Jordan
and only possessed $2 in cash, which would not support
an inference of knowledge or control of narcotics. Id.
With regard to the crumbs of crack cocaine found
next to the defendant, we reasoned that this was ‘‘no
more than a temporal and spatial nexus between the
defendant and the contraband, which is insufficient
proof of possession.’’ Id. Additional evidence was necessary to connect the defendant to the dominion and
control of the cocaine. Id., 657–58. As to the evidence
of furtive movements, we reasoned that nondescript
actions, looking back at the police after a traffic stop
had been initiated, and leaning toward someone in the
front seat did not create or support an inference of
possession of cocaine without more evidence to support such an inference. Id., 659–660. Additionally, there
was no evidence that the defendant had extended his
arms toward or handed contraband to the woman in
the front passenger seat. Id., 660. ‘‘Furthermore, there
was no fingerprint analysis of the bag of crack cocaine
. . . nor was there any chemical analysis of the larger
piece of crack cocaine and the crumbs to establish a
connection between the substances.’’ Id., 661. Finally,
the officer’s opinion that the names and information
contained in the address book ‘‘might be related to drug
trade’’ did not permit an inference of possession by the
defendant. Id.
This court rejected the state’s argument that it had
met its burden of proving possession of narcotics under
the preponderance of the evidence standard. Id., 662–
63. ‘‘Here, the narcotics were not on the defendant’s
person, they were not found in a place under his exclusive or shared control, the police did not observe or
videotape him engaging in any transaction, there were
no controlled purchases from him, the police did not
observe him pass anything to the other occupants in
the car, he did not flee, he did not attempt to conceal
the crumbs of crack cocaine and he did not make any
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State v. Jordan
incriminating statements. The only evidence offered to
prove that the defendant was in possession of the
crumbs of crack cocaine was his proximity to the
crumbs and that he engaged in ‘furtive’ movements.
Under the preponderance of the evidence standard, that
evidence is insufficient to prove possession of narcotics.’’ Id.
Similarly, in the present case, there was insufficient
evidence for the court to find that the defendant was in
possession of the contraband found inside the vehicle.
Specifically, there was nothing in the record to support
the finding that he exercised dominion and control over
the contraband. Its presence near him inside the vehicle,
without more, does not meet the necessary threshold
to support the court’s finding that he violated his special
conditions of probation. Simply stated, there was no
evidence that connected the defendant with possession
of the contraband found inside the vehicle.
We next turn to the scope of our remand. In doing
so, we are guided by this court’s recent decision in
State v. Sykes, supra, 232 Conn. App. 753. In that case,
the defendant pleaded guilty under the Alford doctrine
to two counts of sexual assault in the fourth degree,
two counts of risk of injury to a minor, and possession
of child sexual abuse materials in the second degree.
Id., 755; see North Carolina v. Alford, 400 U.S. 25, 37,
91 S. Ct. 160,
27 L. Ed. 2d 162 (1970). Following a period
of incarceration, the defendant began serving his term
of probation. State v. Sykes, supra, 755. The defendant’s
probation officer subsequently applied for an arrest
warrant after an investigation indicated that the defendant had violated the conditions of his probation. Id.,
759. The trial court found three grounds on which the
defendant had violated his probation. Id., 768. On
appeal, we agreed that the evidence supported the finding that the defendant had violated the conditions that
he not possess sexually explicit materials or utilize
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State v. Jordan
unapproved computers but was insufficient to support
the finding that he had violated the condition that
required him to take polygraph examinations. Id., 770,
772, 774.
This court observed that, ‘‘to support a judgment of
revocation of probation, [o]ur law does not require the
state to prove that all conditions alleged were violated;
it is sufficient to prove that one was violated.’’ (Internal
quotation marks omitted.) Id., 770; see also id., 778. As
a result of the determination that there was insufficient
evidence to support the finding that he had violated the
condition requiring him to undergo polygraph examination, this court concluded that the appropriate course
of action was to set aside his sentence and remand for
resentencing. Id., 778. Specifically, this court explained:
‘‘We are guided by our Supreme Court’s decision in
State v. Benjamin, 299 Conn. 223,
9 A.3d 338 (2010).
In Benjamin, our Supreme Court considered the appeal
of a defendant who had been found in violation of his
probation on two grounds: that he had assaulted an
elderly person and that he had possessed narcotics.
. . . On appeal to this court, the defendant did not
challenge the latter finding but argued that the former
was predicated on improperly admitted and otherwise
insufficient evidence; he further claimed that the trial
court had abused its discretion by imposing a four year
term of incarceration that was based, in part, on its
conclusion that he had assaulted an elderly person.
. . . This court concluded that it was unnecessary to
review the defendant’s challenges to the trial court’s
finding that he had assaulted an elderly person because
the trial court’s unchallenged finding that the defendant
had possessed narcotics constituted a legally sufficient
basis for revoking his probation. . . . Our Supreme
Court disagreed. The court explained that this court
had failed to recognize that the defendant’s briefing
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State v. Jordan
. . . also addressed the dispositional phase of the probation proceeding. . . . Presumably, in the dispositional phase, the question of whether, in addition to
possessing narcotics, the defendant also had committed
the assault would have had some bearing on which
disposition the court ordered and, if the court ordered
the defendant to serve some portion of his suspended
sentence as to that disposition, what that sentence
would be. . . . The court went on to conclude that
there had been sufficient evidence that the defendant
was guilty of assaulting an elderly person, noting that
that determination obviate[d] the need for this court to
direct the Appellate Court to remand the case to the
trial court for a new dispositional phase . . . to consider whether the sentence based solely on the defendant’s possession of narcotics was appropriate or
whether to reduce the sentence in the absence of sufficient evidence of assault. . . .
‘‘In the present case, the record indicates that the
court’s dispositional determination may have been
impacted by its conclusion that the defendant had violated his polygraph condition. In particular, the court’s
comments that the defendant had been researching
. . . in a possible attempt to [build] a defense for refusing to take the . . . examination, suggest that it may
have viewed the defendant’s refusal to take a polygraph
examination [or] its equivalent as bad faith misconduct
warranting the imposition of a more severe sentence
than he might otherwise have received. At the very
least, we cannot be confident that the court would not
have exercised its discretion differently in the dispositional phase had it sentenced the defendant only on the
basis of the two grounds for finding the defendant in
violation of his probation that were sufficiently supported by the record. . . . We therefore conclude that
a remand for resentencing is appropriate in light of our
conclusion that the evidence was insufficient to support
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State v. Jordan
the court’s finding that the defendant violated the condition of his probation requiring him to take polygraph
examinations.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Id., 778–80. We noted
that ‘‘we express[ed] no view as to the appropriate
sentence, and we commit[ted] that determination to the
sound discretion of the trial court.’’ Id., 780.
In the present case, the court remarked at the outset
of the dispositional phase that the defendant previously
had been convicted for offenses involving the possession of and intent to sell illegal drugs. Additionally, the
court noted that the defendant had access to a firearm
at the time of his arrest. It also stated that the defendant
had ‘‘decided that he’s going to violate the law and sell
drugs or sell marijuana . . . .’’ The court iterated that
it had rejected the defendant’s claim that he had not
possessed the contraband found in the vehicle. After
hearing from the defendant, the court imposed a total
effective sentence of eight years of incarceration. On
the basis of these statements, we cannot be confident
that the trial court would not have exercised its discretion differently in the dispositional phase had it sentenced the defendant solely on the basis of violations
of probation for which there was sufficient evidence
in the record. See, e.g., id., 779–80.
The judgments are reversed only as to the sentences
imposed and the cases are remanded with direction to
resentence the defendant; the judgments are affirmed
in all other respects.
In this opinion the other judges concurred.
