State v. Harvey

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State v. Harvey

STATE OF CONNECTICUT v. RODNEY HARVEY
(AC 46771)
Alvord, Moll and Wilson, Js.

Syllabus

Convicted, after a jury trial, of various crimes, including assault in the second
degree and assault in the second degree as an accessory, in connection with
the stabbings of two victims, M and D, the defendant appealed. During an
altercation in M’s residence, which lasted approximately one minute, the
defendant stabbed M repeatedly while another man, H, attacked D, and, after
the defendant yelled for help, H began stabbing M. Approximately two years
after the incident, D sent M a newspaper article containing photographs of
the defendant and H and indicating that they had been arrested in connec-
tion with the stabbings. Several months later, the lead detective on the case
contacted M and obtained a written statement from him indicating that the
men in the newspaper article were the same men who had assaulted him and
D. On appeal, the defendant claimed, inter alia, that his conviction of and
subsequent punishment for both assault in the second degree and assault
in the second degree as an accessory violated the constitutional prohibition
against double jeopardy. Held:

The defendant’s conviction of and subsequent punishment for both assault in
the second degree and assault in the second degree as an accessory violated the
constitutional prohibition against double jeopardy, as the evidence reflected
that the stabbings arose from a continuous course of conduct, they were based
on the same act or transaction for double jeopardy purposes and, thus, they
implicated the prohibition against multiple punishments for a single act;
accordingly, this court vacated the defendant’s conviction of assault in the
second degree as an accessory.

The evidence was sufficient to support the defendant’s conviction of assault
in the first degree as an accessory with respect to the stabbing of D, as the
evidence supported a finding that the defendant and H communicated with
one another, traveled to the city in which M lived, and engaged in assaultive
conduct in M’s residence as part of a criminal enterprise to steal certain
drugs from M, and, thus, the defendant intentionally aided H to engage in
the conduct that constituted the offense of assault in the first degree against
D, and the jury reasonably could have found beyond a reasonable doubt that,
because the defendant and H engaged in the coordinated stabbing attack
against both victims in furtherance of their goal to steal illegal drugs, the
defendant acted with the intent to cause serious physical injury to D.

The trial court properly denied the defendant’s motion to suppress evidence of
M’s out-of-court identification of him in the newspaper article, as the record
supported the court’s finding that the identification was not the product of
state action and, therefore, it did not violate the defendant’s due process
rights under the federal constitution.
State v. Harvey

The trial court properly denied the defendant’s motion to suppress M’s
in-court identification of him because the identification did not violate the
defendant’s right to due process, as the in-court identification was not a
first-time identification, the previous out-of-court identification did not
involve state action, and, although the prescreening requirement set forth
in State v. Dickson (322 Conn. 410) was not applicable because there was an
absence of an unduly suggestive procedure conducted by a state actor, the
court nonetheless prescreened the in-court identification because it found that
the out-of-court identification procedure, although unnecessarily suggestive,
was reliable and, thus, allowed for the in-court identification to take place.

The trial court did not err in concluding that the evidence related to M’s
identifications of the defendant was reliable, as the court’s findings with
respect to the factors upon which it relied to determine the reliability of
M’s out-of-court identification were all supported by the evidence and by
law, and, in light of this court’s conclusion that the trial court did not err in
determining that the out-of-court identification was reliable, the defendant
was unable to demonstrate that the trial court improperly concluded that
the in-court identification was not reliable because it was the product of,
or was tainted by, the unnecessarily suggestive out-of-court identification
procedure that occurred in this case.

The trial court properly exercised its discretion in denying the defendant’s
motion for a new trial based on certain evidence that the prosecution sup-
pressed, as, although the prosecution suppressed evidence after a request
by the defense and that evidence was favorable to the defense, this court was
not persuaded that the suppressed evidence, which tended to undermine an
investigating detective’s credibility but was factually unrelated to the events
underlying the defendant’s conviction, would have cast the case in a different
light altogether or that the absence of the evidence deprived the defendant of
a fair trial so as to constitute a violation of Brady v. Maryland (373 U.S. 83).

Argued May 28, 2025—officially released June 2, 2026

Procedural History

Substitute information charging the defendant with
the crimes of attempt to commit robbery in the first
degree, assault in the first degree as an accessory, assault
in the second degree as an accessory, assault in the second
degree, and conspiracy to commit assault in the first
degree, brought to the Superior Court in the judicial
district of Danbury, where the court, Pavia, J., denied
the defendant’s motion to suppress certain evidence;
thereafter, the case was tried to the jury before Pavia,
J.; verdict and judgment of guilty; subsequently, the
court, Pavia, J., denied the defendant’s motion for a new
State v. Harvey

trial, and the defendant appealed to this court. Affirmed
in part; vacated in part.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were David Applegate, state’s
attorney, and Kristin Chiriatti, assistant state’s attor-
ney, for the appellee (state).

Opinion

WILSON, J. The defendant, Rodney Harvey, appeals
from the judgment of conviction, rendered following
a jury trial, of attempt to commit robbery in the first
degree in violation of General Statutes §§ 53a-49 and
53a-134 (a) (1), assault in the first degree as an accessory
in violation of General Statutes §§ 53a-8 and 53a-59 (a)
(1), assault in the second degree as an accessory in vio-
lation of General Statutes §§ 53a-8 and 53a-60 (a) (2),
assault in the second degree in violation of § 53a-60 (a)
(2), and conspiracy to commit assault in the first degree
in violation of General Statutes §§ 53a-48 and 53a-59 (a)
(1).1 The defendant claims that (1) his conviction of and
subsequent punishment for both assault in the second
degree as an accessory and assault in the second degree
1
The court imposed a total effective sentence consisting of thirty years
of incarceration, execution suspended after fifteen years, followed by
five years of probation. For the conviction under count one for attempted
robbery in the first degree, the court sentenced the defendant to serve
fifteen years of incarceration, suspended after seven and one-half years,
followed by five years of probation. For the conviction under count two
for assault in the first degree as an accessory, the court sentenced the
defendant to serve fifteen years of incarceration, execution suspended
after seven and one-half years, followed by five years of probation. The
court ordered that the sentences imposed under counts one and two run
consecutively. For the convictions under counts three, four, and five,
for assault in the second degree as an accessory, assault in the second
degree as a principal, and conspiracy to commit assault in the first
degree, respectively, the court sentenced the defendant to serve five
years of incarceration. The court ordered that the sentences imposed
under counts three, four, and five run concurrently with the consecu-
tive sentences imposed under counts one and two.
State v. Harvey

as a principal violates the constitutional prohibition
against double jeopardy, (2) the evidence was insufficient
to support his conviction of assault in the first degree as
an accessory, (3) the court improperly admitted evidence
of in-court and out-of-court identifications of him by
one of the victims, and (4) the court erred in denying
his motion for a new trial based on material evidence
that the prosecution suppressed in violation of Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963). We agree with the defendant’s claim that,
under the circumstances of the present case, his convic-
tion of assault in the second degree both as a principal and
as an accessory violates the prohibition against double
jeopardy. By way of relief, we vacate the defendant’s
conviction of assault in the second degree as an accesso-
ry.2 We disagree with the defendant’s remaining claims
and, thus, affirm the judgment in all other respects.
On the basis of the evidence presented at trial, the jury
reasonably could have found the following facts. At all
times relevant, Richard Mongero resided in a two-story
house in Danbury. Mongero used illegal drugs and had
a criminal history. He earned money, in part, by sell-
ing prescription codeine promethazine cough syrup,
known as “lean,” which he obtained by fraudulent means.
Approximately one week prior to May 23, 2018, Mon-
gero sold lean to Diego Trejo, whom he knew as “Nick”
or “Lean Lick.” On May 23, 2018, Mongero arranged
for Trejo to come to his home at 12:30 p.m. to make
another purchase. Mongero communicated with Trejo
by cell phone throughout the day. Trejo did not arrive
at Mongero’s home until 6:30 p.m. A few minutes prior
to Trejo’s arrival, Thomas DeSantis, Mongero’s friend
and coworker, arrived. DeSantis told Mongero that “some
guys” were waiting outside for him. Although Mongero
was expecting only Trejo, he asked DeSantis to let them
in.
2
The defendant also claims that the evidence was insufficient to sup-
port his conviction of assault in the second degree as an accessory.
Because, in connection with the defendant’s double jeopardy claim, we
vacate the conviction for assault in the second degree as an accessory,
it is unnecessary for us to reach the merits of this claim.
State v. Harvey

Soon thereafter, Trejo entered Mongero’s upstairs bed-
room accompanied by the defendant and Collin Hedley,
both of whom were unknown to Mongero. Hedley asked
Mongero if he had any marijuana wax for sale. Mongero
stood up and removed some marijuana wax from his
pocket, and Hedley nodded to the defendant and Trejo. At
that moment, the defendant rushed toward Mongero, and
Hedley attempted to strike DeSantis. Mongero reacted
by punching the defendant, and they both fell backward
into a recliner. The defendant, who was positioned face-
to-face on top of Mongero with his knees in Mongero’s
lap, stabbed Mongero in the right side of his body with
a utility knife. Mongero quickly realized that there was
a knife deep inside of him.
Mongero and the defendant struggled as they both
attempted to gain control of the knife. Mongero removed
the knife from his side and stabbed the defendant in the
stomach, which caused the defendant to yell, “Get him
the fuck off me.” During the defendant’s altercation
with Mongero, Hedley physically attacked DeSantis by
stabbing him multiple times with a stiletto knife. When
the defendant yelled, “Get him the fuck off me,” Hedley
responded by stabbing Mongero in the back. Trejo did not
physically assault either Mongero or DeSantis, but he
directed the defendant and Hedley to “fuck [them] up”
and to “get everything.” At one point during the alterca-
tion, Trejo attempted to put a bag full of Xanax pills into
his pocket before Mongero intervened and pulled the bag
away from him. The altercation in the bedroom lasted
approximately one minute and it ended when Hedley
shouted, “[L]et’s go.” Mongero chased Trejo out of the
house before going back inside to assist DeSantis, who
was still upstairs with the defendant and Hedley.
When he entered the front door, Mongero saw the
defendant and Hedley at the top of the staircase that led
to the second floor and his bedroom. The perpetrators,
followed by Mongero, made their way downstairs and
exited the home through French doors that led from a
dining room to an outdoor porch that was raised off of
State v. Harvey

the ground. Because there were no stairs leading from the
porch to the ground, the defendant and Hedley attempted
to flee by crawling over the wooden railing on the porch.
Mongero kicked the railing until it broke, and the defen-
dant and Hedley fell to the ground below. Like Trejo,
the defendant and Hedley fled from Mongero’s yard on
foot. Later, the three men left the area together in an
automobile.
Mongero and one of his neighbors called 911. Police
and emergency medical personnel arrived, and Mongero
and DeSantis were transported by ambulance to Danbury
Hospital where they were treated for multiple physical
injuries they sustained during the incident, some of
which were life-threatening in nature. Mongero’s injuries
included stab wounds to his right lower abdomen, neck,
back and elbow. DeSantis’ various injuries included stab
wounds, including a puncture wound that required open-
heart surgery. Additional facts and procedural history
will be set forth as necessary.
I
First, the defendant claims that his conviction of and
subsequent punishment for both assault in the second
degree as an accessory and assault in the second degree as
a principal violate the constitutional prohibition against
double jeopardy. We agree.
In count three of the state’s second amended long
form information, the state charged the defendant with
assault in the second degree as an accessory in that, “on
or about May 23, 2018, at 13 Windaway Road, Danbury,
with intent to cause physical injury to another person,
[the defendant] solicited, requested, commanded, impor-
tuned and intentionally aided another person to engage
in conduct where the other person, Collin Hedley, with
intent to cause physical injury to another person, caused
such injury to another person, to wit: Richard Mongero,
by means of a dangerous instrument, to wit: a knife-like
instrument, in violation of . . . §§ 53a-8 and 53a-60 (a)
(2).” In count four of the state’s second amended long
State v. Harvey

form information, the state charged the defendant with
assault in the second degree as a principal in that, “on or
about May 23, 2018, at 13 Windaway Road, Danbury,
with intent to cause physical injury to another person,
[the defendant] caused such injury to another person, to
wit: Richard Mongero, by means of a dangerous instru-
ment, to wit: a knife-like instrument, in violation of . . .
§ 53a-60 (a) (2).”
The defendant argues that the evidence reflects that
Mongero sustained stab wounds “during a single, con-
tinuous course of conduct. Mongero was stabbed by both
men in a matter of seconds, and the stabbings took place
in the same location—his bedroom. There was also no
break or intervening event between the stabbings. . . .
Mongero and the defendant were fighting over the knife
and when the defendant yelled for someone to get Mon-
gero off him, Hedley stabbed him.” The defendant argues
that, because the evidence reflects that the stabbings
arose from a continuous course of conduct, they are
based on the same act or transaction for double jeopardy
purposes and, thus, implicate the prohibition against
multiple punishments for a single act. The defendant
argues that the proper remedy is to vacate his conviction
under either count three or count four.
The defendant asserts, and we agree, that he did not
preserve this claim at trial. The defendant seeks review
under State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding,
“a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitu-
tional violation beyond a reasonable doubt.” (Emphasis
State v. Harvey

in original; footnote omitted.) State v. Golding, supra,
239–40; see also In re Yasiel R., supra, 317 Conn. 781
(modifying third prong of Golding). The claim is review-
able under Golding because the claim is of constitutional
magnitude alleging the violation of a fundamental right;
see State v. Barber, 64 Conn. App. 659, 671, 781 A.2d
464 (“[i]f double jeopardy claims arising in the context
of a single trial are raised for the first time on appeal,
these claims are reviewable” (internal quotation marks
omitted)), cert. denied, 258 Conn. 925, 783 A.2d 1030
(2001); and the record permits us to review the claim.
Before evaluating the claim under Golding’s third
prong to determine whether the alleged constitutional
violation exists and deprived the defendant of a fair trial,
we set forth the applicable legal principles. “A defen-
dant’s double jeopardy claim presents a question of law,
over which our review is plenary.” (Internal quotation
marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52
A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct.
1804, 185 L. Ed. 2d 811 (2013). “The double jeopardy
clause of the fifth amendment to the United States con-
stitution provides: [N]or shall any person be subject for
the same offense to be twice put in jeopardy of life or limb
. . . . This constitutional provision is applicable to the
states through the due process clause of the fourteenth
amendment. . . . The Connecticut constitution provides
coextensive protection, with the federal constitution,
against double jeopardy.” (Internal quotation marks
omitted.) State v. Ragalis, 235 Conn. App. 538, 559,
345 A.3d 844, cert. denied, 353 Conn. 934, 347 A.3d
877 (2025).
“Double jeopardy prohibits not only multiple trials
for the same offense, but also multiple punishments for
the same offense. . . . We have articulated two different
approaches to the double jeopardy analysis of multiple
punishments. Which approach applies in any given case
depends on the statutory basis of the underlying charges.
When the defendant is charged with the violation of
two distinct statutes in a single criminal proceeding
State v. Harvey

arising from a single underlying set of events, we have
employed a two part analysis. First, the charges must
arise out of the same act or transaction. Second, it must
be determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . . We [t]raditionally . . . have
applied the . . . test [set forth in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932)] to determine whether two statutes criminalize
the same offense, thus placing a defendant prosecuted
under both statutes in double jeopardy: [W]here the
same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which
the other does not. . . .
“In contrast, [t]he proper double jeopardy inquiry when
a defendant is convicted of multiple violations of the same
statutory provision is whether the legislature intended
to punish the individual acts separately or to punish
only the course of action which they constitute. . . .
This analysis essentially asks what unit of prosecution
the legislature intended as the punishable act under the
statute. . . . The unit of prosecution analysis involves an
effort to determine the legislature’s intent as to whether
and how a course of prohibited conduct can be separat[ed]
into parts, each of which in itself constitutes a completed
offense. . . . In some instances, the legislature will intend
to punish a continuous course of conduct as a single unit
of prosecution. . . . In other instances, the legislature
intends to punish separately each discrete act that con-
stitutes a completed offense. . . .
“Selecting between these two approaches is simple
enough in the ordinary case because it will be clear
whether the defendant stands charged with violating
two different criminal statutes or two violations of the
same criminal statute.” (Citations omitted; emphasis
omitted; footnotes omitted; internal quotation marks
omitted.) State v. Ruiz-Pacheco, 336 Conn. 219, 226–29,
244 A.3d 908 (2020).
State v. Harvey

In the present case, the defendant was convicted of
assault in the second degree as a principal offender under
§ 53a-60 (a) (2) and as an accessory under §§ 53a-8 and
53a-60 (a) (2). The state alleged that Mongero was the
victim of both offenses. Because Connecticut law treats
the two violations as alternative means of committing
the same crime, they arise under the same substantive
criminal statute for double jeopardy purposes. See id.,
229 (concluding that conviction of assault in first degree
as principal offender in violation of General Statutes §
53a-59 (a) (1) and conviction of assault in first degree
as accessory in violation of §§ 53a-59 (a) (1) and 53a-8
arise under same substantive criminal statute for double
jeopardy purposes). As our Supreme Court has explained,
“although a separate and distinct provision in our crimi-
nal statutes defines a category of conduct commonly
known as accessory liability, [t]here is no such crime as
being an accessory . . . . The accessory statute merely
provides alternate means by which a substantive crime
may be committed.” (Emphasis in original; internal
quotation marks omitted.) Id.
“To determine whether the defendant’s multiple
assault convictions [under the same criminal statute]
violate the double jeopardy clause, we must ascertain
the unit of prosecution that the legislature intended to
punish under [the criminal statute at issue]. . . . This is
because [t]he role of the constitutional guarantee [against
double jeopardy] is limited to [en]suring that the court
does not exceed its legislative authorization by impos-
ing multiple punishments for the same offense. . . . The
issue, though essentially constitutional, becomes one
of statutory construction.” (Citation omitted; internal
quotation marks omitted.) Id., 231. Issues of statutory
construction are afforded plenary review. Id., 232.
“When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to deter-
mine, in a reasoned manner, the meaning of the statu-
tory language as applied to the facts of [the] case . . . .
State v. Harvey

In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not be
considered.” (Internal quotation marks omitted.) Id.
Section 53a-60 (a) (2) provides: “A person is guilty
of assault in the second degree when . . . with intent to
cause physical injury to another person, the actor causes
such injury to such person or to a third person by means
of a deadly weapon or a dangerous instrument other
than by means of the discharge of a firearm . . . .” The
issue concerning the interpretation of the statute was
resolved in State v. Nixon, 92 Conn. App. 586, 886 A.2d
475 (2005), in which this court, in resolving a double
jeopardy claim arising from multiple assault convictions
arising under § 53a-60 (a) (2), concluded that § 53a-60
(a) (2) did not reflect a legislative intent that each act of
stabbing constitutes a separate, complete, and chargeable
offense. Id., 589–97. We are bound by that interpretation
of the statute and, “[i]n the absence of a clear legislative
intent to impose multiple punishments for violations of
the same criminal statute arising out of a single trans-
action or occurrence, the unit of prosecution question
must be resolved in favor of the rule of lenity.” State v.
Ruiz-Pacheco, supra, 336 Conn. 236.
Our unit of prosecution analysis forbids us from treat-
ing each stabbing as a separate crime and, applying the
rule of lenity, we must avoid turning a single transac-
tion into multiple offenses. This conclusion, however,
does not end our analysis for double jeopardy purposes.
We next consider whether, as the defendant argues, his
repetitive stabbing of Mongero during the events of May
23, 2018, occurred during a single, continuous course
of conduct or whether, as the state argues, the facts
reflect two separate courses of assaultive conduct. In a
careful consideration of the record, we must “look to the
State v. Harvey

following factors to determine whether . . . the defendant
engaged in distinct courses of conduct and, therefore,
separately punishable assaults as to each victim: (1) the
amount of time separating the acts; (2) whether the
acts occurred at different locations; (3) the defendant’s
intent or motivation behind the acts; and (4) whether
any intervening events occurred between the acts, such
that the defendant had the opportunity to reconsider
his actions.” Id., 241.
The evidence reflects, and the parties do not disagree,
that the stabbing incident involving Mongero lasted
approximately one minute,3 and it occurred in one loca-
tion, Mongero’s bedroom. The parties disagree, how-
ever, with respect to the defendant’s intent and whether
intervening events occurred between the stabbings, such
that the defendant had an opportunity to reconsider his
actions. Mongero testified that, when the incident began,
the defendant fell on top of him, essentially pushing him
into the recliner in his bedroom. The defendant positioned
himself on Mongero’s lap so that he was face-to-face
with Mongero, at which time he stabbed him. Mongero
testified that he physically struggled with the defendant,
eventually standing up and pulling the knife from his
side. Mongero testified that “[he] pulled it out and we
fought over it and I inserted it in him.” According to
Mongero, “[t]hen we fought over it and continued to
fight . . . for the possession of the knife, whereas then I
started to be attacked from the back by [Hedley], stabbed
in the neck and the back.” Mongero testified that, while
this scuffle was occurring, the defendant began yelling
“get him the fuck off me. . . . [T]hat’s when I started to
be stabbed by [Hedley]. . . . [Because] I was protecting
myself.”
According to the state, the foregoing testimony reflects
that distinct acts occurred, “in the first, the defendant
[was] stabbing Mongero in the side and in the second,
[the defendant was] yelling, [g]et him the fuck off me,
causing Hedley to stab Mongero in the back. The two
3
DeSantis testified that the attack lasted “[a]bout a minute.”
State v. Harvey

assaults, one as principal and one as accessory, are thus
susceptible of separation into parts, each of which in
itself constitutes a completed offense and not part of
the same continuing course of conduct.” (Internal quo-
tation marks omitted.) The state also argues that “the
defendant certainly had the opportunity to reconsider
his actions . . . when Mongero got his hands on the knife
and fought back. . . . Instead of releasing the knife and
abandoning the attack, he opted to call for assistance .
. . demonstrating that he had formed a new, separate
criminal intent.” (Citations omitted; internal quotation
marks omitted.)
Contrary to the state’s arguments, we are not per-
suaded that, when Mongero took control of the knife
and the defendant asked for help, the defendant formed
a new, separate criminal intent. The defendant’s state-
ment, “[g]et him the fuck off me,” did not occur during
a break in the action, but was a reaction in the heat of
an uninterrupted physical struggle that transpired in
one location and lasted for approximately one minute.
Importantly, after Hedley responded and began stabbing
Mongero, the defendant did not engage in separate con-
duct, such as by restraining Mongero to aid the assault
being committed by Hedley, which would have reflected
that he had formed a separate intent. In light of all of the
circumstances, the evidence that the defendant asked
for help during this brief physical assault also does not
cause us to conclude that he had even a brief opportu-
nity to reconsider his actions, but merely that he sought
assistance because Mongero had gained control of the
defendant’s knife. Cf. State v. Ruiz-Pacheco, supra, 336
Conn. 244–45 (two distinct courses of conduct occurred
for double jeopardy purposes because “the defendant’s
stabbings of [the victim] are distinguished by the break
in the fighting, the movement from one area of the park-
ing lot to another, and the defendant’s own articulation
of a distinct criminal intent”). Accordingly, we are not
persuaded that it is appropriate to treat the defendant’s
actions as two separate instances of assaultive conduct
for purposes of double jeopardy.
State v. Harvey

The defendant has demonstrated under Golding’s third
prong that a constitutional violation exists that deprived
him of a fair trial. The state has not attempted to demon-
strate under Golding’s fourth prong that the violation
is harmless beyond a reasonable doubt. Although, in
this case, the court sentenced the defendant to serve a
concurrent sentence for both assault in the second degree
offenses, “we recognize that the conviction of both of
the separate offenses, in their own right, impermis-
sibly harms the defendant.” (Internal quotation marks
omitted.) State v. Purvis, 227 Conn. App. 188, 220, 321
A.3d 1158, cert. denied, 350 Conn. 922, 325 A.3d 1093
(2024). The appropriate remedy is to vacate the defen-
dant’s conviction of assault in the second degree as an
accessory.4 See, e.g., State v. Ruiz-Pacheco, supra, 336
4
By way of relief in connection with this double jeopardy claim, the
defendant asks this court to vacate one of the convictions for assault
in the second degree. He does not ask this court to remand the case to
the trial court for resentencing. Although we vacate the defendant’s
conviction under count three, we do not require the court to resentence
the defendant.
Our Supreme Court has explained that, when one or more parts of a
multicount conviction is vacated by a reviewing court, “common sense
dictates that the [sentencing] judge should be free to review the effi-
cacy of what remains in light of the original plan, and to reconstruct
the sentencing architecture . . . within applicable constitutional and
statutory limits, if that appears necessary in order to ensure that the
punishment still fits both crime and criminal. . . . When we endorsed
the Appellate Court’s adoption of the aggregate package theory, we
explained that a defendant in appealing his conviction and punishment,
has voluntarily called into play the validity of the entire sentencing
package . . . .” (Internal quotation marks omitted.) State v. Johnson,
316 Conn. 34, 41, 111 A.3d 447 (2015). Further, “[a]lthough the [trial]
court may reconstruct the sentencing package to conform to its original
intent, it is not required to do so. It may, therefore, simply eliminate
the sentence previously imposed for the vacated conviction, and leave
the other sentences intact; or it may reconstruct the sentencing package
so as to reach a total effective sentence that is less than the original
sentence but more than that effected by the simple elimination of the
sentence for the vacated conviction. The guiding principle is that the
court may resentence the defendant to achieve a rational, coherent
[sentence] in light of the remaining convictions, as long as the revised
total effective sentence does not exceed the original.” (Internal quo-
tation marks omitted.) Id., 41–42. Moreover, the court in Johnson
observed that “the trial court always retains authority to restructure
the original sentence if the court determines that the judgment of
the reviewing court altered its original sentencing intent [and] . . . in
a case in which the judgment of the reviewing court does not change
State v. Harvey

Conn. 242–43 (in light of double jeopardy violation aris-
ing from conviction for assault in first degree and assault
in first degree as accessory, proper remedy is to reverse
conviction for assault in first degree as accessory).
II
Next, the defendant claims that the evidence was insuf-
ficient to support his conviction of assault in the first
degree as an accessory. We are not persuaded.
In count two of its second amended long form infor-
mation, the state charged the defendant with assault in
the first degree as an accessory in that, “on or about May
23, 2018, at 13 Windaway Road, Danbury, with intent
to cause serious physical injury to another person, [the
defendant] solicited, requested, commanded, impor-
tuned and intentionally aided another person to engage
the total effective sentence, the reviewing court should not order the
trial court to resentence a defendant on the remaining convictions
unless there is some evidence or other basis in the record supporting
the conclusion that the judgment of the reviewing court altered the
original sentencing intent. Adopting a default rule requiring the trial
court to revisit the entire sentence, even when there is no evidence in
the record suggesting that the court’s original sentencing intent was
affected by the decision of the reviewing court, would waste valuable
judicial resources.” Id., 42–43. In determining whether a trial court’s
original sentencing intent has been disturbed, it is appropriate for the
reviewing court to consider whether its decision had any effect on the
total effective sentence or any of the conduct that served as the predicate
for the original sentence. Id., 43–44.
In the present case, for each of the convictions under counts three,
four, and five, for assault in the second degree as an accessory, assault
in the second degree as a principal, and conspiracy to commit assault
in the first degree, respectively, the court sentenced the defendant to
serve five years of incarceration. The court ordered that the sentences
imposed under counts three, four, and five run concurrently to the con-
secutive sentences imposed under counts one and two. See footnote 1 of
this opinion. Vacating the conviction imposed under count three does
not alter the defendant’s total effective sentence, as the total effective
sentence is based on the same conduct on which the court relied in the
first instance, and there is no other basis on which to conclude that the
trial court’s original sentencing intent has been disturbed. The trial
court retains the authority to restructure the defendant’s entire sen-
tence if it determines that doing so is necessary to retain its original
sentencing intent. See State v. Johnson, supra, 316 Conn. 42–43; see
also State v. Fox, 192 Conn. App. 221, 230, 217 A.3d 41 (it was unnec-
essary to remand case to trial court for resentencing because vacatur
of defendant’s conviction would not alter his total effective sentence),
cert. denied, 333 Conn. 946, 219 A.3d 375 (2019).
State v. Harvey

in conduct where the other person, Collin Hedley, with
intent to cause serious physical injury to another person,
caused such injury to another person, to wit: Thomas
DeSantis by means of a dangerous instrument, to wit:
a knife-like instrument, in violation of . . . §§ 53a-8 and
53a-59 (a) (1).” The defendant claims that the evidence
was insufficient to sustain his conviction of this offense
because “[t]here was absolutely no evidence that [he]
acted as an accessory to the assault on DeSantis as alleged
in count two. The evidence was clear that Hedley attacked
DeSantis, and there was no evidence that the defendant
aided Hedley or intended to physically injure DeSantis.”
The defendant contends that evidence of his mere pres-
ence at the crime scene, and the absence of evidence that
he “somehow helped Hedley and intended to aid him to
cause physical injury to DeSantis,” was insufficient to
prove his guilt under a theory of accessorial liability.
The defendant asks this court to vacate his conviction.5
We begin our analysis by setting forth the essential
elements of the offense, as well as the applicable legal
principles. Section 53a-59 (a) provides in relevant part:
“A person is guilty of assault in the first degree when: (1)
With intent to cause serious physical injury to another
person, he causes such injury to such person or to a
third person by means of a deadly weapon or a danger-
ous instrument . . . .” Here, the defendant was charged
not as a principal offender, but as an accessory. Section
5
Defense counsel moved for a judgment of acquittal at the close of the
state’s case-in-chief, which the court denied. In connection with that
motion, defense counsel did not distinctly raise the arguments that the
defendant raises in connection with this claim. Before this court, the
defendant argues that this claim is reviewable under State v. Golding,
supra, 213 Conn. 239–40. Our Supreme Court, however, has “observed
that any defendant found guilty on the basis of insufficient evidence has
been deprived of a constitutional right, and would therefore necessarily
meet the four prongs of Golding. . . . Accordingly, because there is no
practical significance . . . for engaging in a Golding analysis, we review
an unpreserved sufficiency of the evidence claim as though it had been
preserved.” (Citation omitted; internal quotation marks omitted.) State
v. Revels, 313 Conn. 762, 777, 99 A.3d 1130 (2014), cert. denied, 574
U.S. 1177, 135 S. Ct. 1451, 191 L. Ed. 2d 404 (2015). Accordingly, we
need not rely on Golding in our analysis of this claim.
State v. Harvey

53a-8 (a) provides: “A person, acting with the mental
state required for commission of an offense, who solicits,
requests, commands, importunes or intentionally aids
another person to engage in conduct which constitutes
an offense shall be criminally liable for such conduct
and may be prosecuted and punished as if he were the
principal offender.” This court has recognized that, “if
the evidence, taken in the light most favorable to sus-
taining the verdict, establishes that [the defendant] . .
. did some act which . . . directly or indirectly counseled
or procured any persons to commit the offenses or do
any act forming a part thereof, then the [conviction]
must stand.” (Internal quotation marks omitted.) State
v. Juarez, 179 Conn. App. 588, 601, 180 A.3d 1015
(2018), cert. denied, 331 Conn. 910, 203 A.3d 1245
(2019). Conversely, “[o]ne who is present when a crime
is committed but neither assists in its commission nor
shares in the criminal intent of its perpetrator cannot
be convicted as an accessory. . . . Mere presence as an
inactive companion, passive acquiescence, or the doing
of innocent acts which may in fact aid the one who com-
mits the crime must be distinguished from the criminal
intent and community of unlawful purpose shared by
one who knowingly and wilfully assists the perpetrator
of the offense in the acts which prepare for, facilitate, or
consummate it.” (Citation omitted; internal quotation
marks omitted.) State v. Bennett, 307 Conn. 758, 770,
59 A.3d 221 (2013).
In light of the state’s theory of the case, the state
bore the burden of proving the following essential ele-
ments beyond a reasonable doubt: (1) Hedley, intending
to cause serious physical injury to DeSantis, caused
such injury to DeSantis by means of a deadly weapon
or a dangerous instrument; (2) the defendant solicited,
requested, commanded, importuned, or intentionally
aided Hedley to engage in the conduct that constituted
the offense of assault in the first degree; and (3) the
defendant acted with the intent to cause serious physical
injury to DeSantis.
State v. Harvey

“The standard of review we apply to a claim of insuf-
ficient evidence is well established. In reviewing the
sufficiency of the evidence to support a criminal convic-
tion we apply a [two part] test. First, we construe the
evidence in the light most favorable to sustaining the
verdict. Second, we determine whether [on] the facts so
construed and the inferences reasonably drawn there-
from the [jury] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
“We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defendant
guilty of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not be
proved beyond a reasonable doubt. . . . If it is reasonable
and logical for the jury to conclude that a basic fact or
an inferred fact is true, the jury is permitted to consider
the fact proven and may consider it in combination with
other proven facts in determining whether the cumu-
lative effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond a
reasonable doubt. . . .
“Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts [that] establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [jury] is not required to accept as dispositive
those inferences that are consistent with the defendant’s
innocence. . . . The [jury] may draw whatever inferences
from the evidence or facts established by the evidence it
deems to be reasonable and logical. . . .
“Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all pos-
sible doubt . . . nor does proof beyond a reasonable doubt
require acceptance of every hypothesis of innocence posed
by the defendant that, had it been found credible by the
[jury], would have resulted in an acquittal. . . . On appeal,
State v. Harvey

we do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis of
innocence. We ask, instead, whether there is a reasonable
view of the evidence that supports the [jury’s] verdict
of guilty.” (Internal quotation marks omitted.) State v.
Brown, 345 Conn. 354, 369–70, 285 A.3d 367 (2022).
As we review the relevant evidence, we are mindful that
“[t]he jury is entitled to draw reasonable inferences from
the evidence before it and, in performing its function, the
jury brings to bear its common sense and experience of
the affairs of life. . . . It is often said that common sense
is not left at the courthouse door.” (Citation omitted;
internal quotation marks omitted.) State v. Flowers, 161
Conn. App. 747, 757, 129 A.3d 157 (2015), cert. denied,
320 Conn. 917, 131 A.3d 1154 (2016).
The evidence and the reasonable inferences drawn
therefrom reflect that, during the afternoon prior to the
incident at Mongero’s residence, the defendant, Hedley,
and Trejo were in communication via their cell phones.
Trejo already had arranged to meet Mongero, at his
residence, for the purpose of making another purchase
of an illegal drug. The defendant, Hedley, and Trejo were
driven to Mongero’s residence by a female. After their
automobile approached Mongero’s residence at a high
rate of speed, the driver allowed the defendant, Hedley,
and Trejo to exit the automobile a short distance from the
residence. The driver of the automobile followed closely
behind them as they walked to the residence. The driver
of the automobile then repeatedly circled the neighbor-
hood waiting for their return. After leaving Mongero’s
residence, the defendant, Hedley, and Trejo were quickly
driven away from the neighborhood together.
The defendant and Hedley each entered Mongero’s
residence armed with a knife. Once in Mongero’s bed-
room, Hedley nodded to the defendant and Trejo. Imme-
diately after, Hedley attempted to strike DeSantis before
stabbing him repeatedly, and the defendant rushed
toward Mongero before stabbing him repeatedly. Trejo
State v. Harvey

remained, encouraging the defendant and Hedley to
“fuck [them] up” and to “get everything.” Trejo tried
to steal some of the drugs in Mongero’s bedroom. Once
Hedley shouted, “let’s go,” the physical altercations came
to an end, and the defendant, Hedley, and Trejo left the
residence and found their way to the automobile that
was waiting for them.
The evidence did not demonstrate that the defendant
threatened, injured, or attempted to injure DeSantis.
That, however, was not the state’s burden to prove. In
light of the subordinate facts, supported by the evidence
presented at trial, the jury reasonably could have found
that the defendant, Hedley, and Trejo communicated
with one another, traveled to Danbury, and engaged
in assaultive conduct in Mongero’s residence as part of
a criminal enterprise to steal illegal drugs from Mon-
gero. Although the evidence suggests that DeSantis was
unknown to the defendant, Hedley, and Trejo prior to
the events at issue, the defendant and Hedley nonethe-
less acted in unison to inflict serious physical injuries
on DeSantis and Mongero by means of the concealed
knives in their possession in furtherance of that shared
criminal enterprise.
There is no dispute that Hedley, intending to cause
serious physical injury to DeSantis, caused such injury
to DeSantis by means of a deadly weapon or a dangerous
instrument. Contrary to the defendant’s arguments, the
evidence supported a finding that the defendant inten-
tionally aided Hedley to engage in the conduct that con-
stituted the offense of assault in the first degree against
DeSantis because the facts support an inference that,
once the defendant and Hedley encountered DeSantis
in Mongero’s bedroom, they engaged in a coordinated
stabbing attack to subdue both victims in furtherance
of their goal of stealing illegal drugs. Likewise, on these
facts, the jury reasonably could have found beyond a
reasonable doubt that, because the defendant and Hed-
ley engaged in the coordinated stabbing attack against
both occupants of the bedroom so that they could obtain
State v. Harvey

illegal drugs, the defendant acted with the intent to cause
serious physical injury to DeSantis.
This is not a situation, as the defendant argues, in
which he was a mere bystander to a crime committed by
another person. The facts concerning the defendant’s
conduct before, during, and following the stabbing inci-
dent belie this argument. The defendant was not only
armed, but he and Hedley acted in unison to subdue
Mongero and DeSantis. The defendant did not flee or
demonstrate his surprise when Hedley began stabbing
DeSantis. Instead, when Hedley nodded his head, he
aided Hedley by stabbing, and thus subduing, Mongero.
This conduct prevented Mongero from interfering with
Hedley’s simultaneous assault of Mongero’s friend and
coworker, DeSantis. Thus, the defendant was neither
an inactive companion, someone engaging in innocent
acts, or someone who passively acquiesced while Hedley
stabbed DeSantis repeatedly in his presence. He shared
the criminal intent of Hedley and actively participated
in a coordinated attack that resulted in serious physical
injuries to both victims. For the foregoing reasons, there
is a reasonable view of the evidence that supports the
jury’s finding beyond a reasonable doubt that the defen-
dant, acting with the requisite mental state, intentionally
aided Hedley in his assault of DeSantis. Accordingly, we
reject the defendant’s claim.
III
Next, the defendant claims that the court improperly
denied his motion to suppress evidence of Mongero’s
out-of-court and in-court identifications of him. The
defendant’s claim may be distilled to three distinct sub-
claims: (1) the court improperly denied his motion to
suppress Mongero’s out-of-court identification of him
as violative of his right to due process,6 (2) the court
improperly denied Mongero’s in-court identification of
6
We analyze the due process arguments raised in connection with this
claim under the federal constitution. The defendant has not framed
his arguments under the state constitution, and he has not separately
analyzed a claim under the state constitution. See State v. Langley,
State v. Harvey

him as violative of his right to due process, and (3) the
court erred in concluding that the identification evidence
was reliable. We are not persuaded.
The following additional facts are relevant to this
claim. By written motion of October 6, 2021, the defen-
dant moved to suppress an out-of-court identification
of the defendant by Mongero on January 18, 2021, on
the grounds that it was “unnecessarily suggestive and
unreliable under the totality of the circumstances.” The
defendant also asked the court “to preclude any in-court
identifications of the defendant by [Mongero].”
On November 10, 2021, the court held an evidentiary
hearing on the motion, during which the defendant pre-
sented testimony from Mongero and Detective Justin
Williams of the Danbury Police Department. Williams
testified that he was the lead detective with respect to
the incident that had occurred at Mongero’s residence
and that, following the incident, he stayed in touch with
Mongero. In the immediate aftermath of the May 23,
2018 stabbing incident, Mongero provided the police
with a physical description of the perpetrators. Williams
testified that, in January 2021, the state’s attorney’s
office asked him to administer a photographic array
to Mongero related to this case. Williams spoke with
Mongero by phone in January 2021, and Mongero told
Williams that, in June 2020, DeSantis sent him a link to
a January 29, 2020 article in the News-Times, a Danbury
newspaper, that included information about the incident,
as well as photographs of the defendant, Hedley, and
Trejo. Mongero indicated that he read the article and
that both he and DeSantis agreed that it had correctly
identified the three perpetrators.
The article, which was admitted into evidence at the
suppression hearing, stated, among other things, that
the defendant, Hedley, and Trejo had been arrested in
connection with the May 23, 2018 incident at Mongero’s
residence. In discussing the case with Mongero, Williams
128 Conn. App. 213, 218 n.2, 16 A.3d 799, cert. denied, 302 Conn. 911,
27 A.3d 371 (2011).
State v. Harvey

told him that the police had identified the defendant by
means of DNA evidence. Williams believed that admin-
istering a photographic array to Mongero after he spoke
with him by phone in January 2021 was not feasible
because the only photograph that he had of the defendant
was the same booking photograph of the defendant that
appeared in the newspaper article. Williams testified
that he did not administer a photographic array earlier
during his investigation for various reasons, including
the fact that, following the stabbing incident, Mon-
gero had been incarcerated in the same facility as the
defendant,7 and he believed it was appropriate to take
direction from the state’s attorney’s office, which had
not asked him to obtain an identification from Mongero
until January 2021.
Williams further testified that he met with Mongero
on March 5, 2021, to obtain a written statement from
him concerning his identifications of the defendant and
Hedley, which were made in connection with the news-
paper article. Mongero told Williams that he was “very
positive” and had “no doubt” that the person pictured
and identified as the defendant had stabbed him and
that he was “100 percent” certain that the person pic-
tured and identified as Hedley had stabbed DeSantis.
Mongero told Williams (1) that the person pictured and
identified as Trejo was also at the residence, and (2) what
Trejo had done during the incident. Williams testified
that the article did not specify the level of detail that
Mongero provided with respect to the activities of each
perpetrator during the stabbing incident. Furthermore,
Williams testified that Mongero’s identifications of the
defendant and Hedley were consistent with the results
of DNA testing performed on knives that the police had
seized following the events at issue. In the written and
sworn statement that Mongero provided to Williams, he
stated in part that the person pictured and identified as
7
At the suppression hearing, Mongero testified that, in January
2019, he pleaded guilty to a weapons charge in an unrelated case and
was imprisoned for one year. His term of imprisonment ended shortly
before DeSantis sent him the newspaper article.
State v. Harvey

the defendant “put a knife in my body multiple times.”
Mongero also stated that the person pictured and iden-
tified as Hedley “is undoubtedly the man who stabbed
[DeSantis]. 100 [percent].” Williams testified that, prior
to Mongero providing this identification, both Mongero
and DeSantis had identified Trejo by means of a pho-
tographic array. Mongero, however, failed to identify
Hedley when, in August 2018, the police asked him to
review a photographic array that included a photograph
of Hedley.
At the suppression hearing, Mongero testified that
DeSantis had told him “off of the cuff” that the police had
apprehended “the guys who tried to kill us.”8 Mongero
speculated that, because DeSantis was the “main victim,”
DeSantis had been assisting the police in “closing the
case” and that DeSantis had been “shown the article . . . .”
Mongero testified that months after DeSantis sent him
a link to the newspaper article, Williams contacted him
and asked him if he had seen the article and whether
the men identified and pictured were the perpetrators.9
Williams then asked Mongero to email him the article so
that there was no confusion about which article Mongero
had seen. After Mongero stated that he recognized the
people pictured in the article, Williams asked Mongero
for a written statement. According to Mongero, Wil-
liams had “very little to say” about the people pictured
in the article.
Mongero stated that, when DeSantis sent him the
link to the article,10 he was “blown away” because he did
8
Mongero clarified that DeSantis did not express an opinion as to
whether the men pictured in the article were the actual perpetrators,
but merely said, “Can you believe this? Take a look at it.”
9
Mongero testified that, immediately after the stabbing incident, he
was told by “law enforcement” that, if he cooperated with the police and
helped them identify the perpetrators, he would not face arrest for the
illegal drugs that were found in his residence by the police. Mongero
also testified that he assisted the detectives working on this case “up
until what they had asked me for and figured they would fade away and
that was that.” After he was contacted about his case in 2021, however,
he contacted his attorney and entered into a cooperation agreement
with the state.
10
Mongero estimated that DeSantis sent him the link to the newspaper
article, via an instant messaging app, in February 2020.
State v. Harvey

not believe that the police would apprehend any of the
perpetrators. Mongero recalled instantly recognizing
the people pictured, including the man who had stabbed
DeSantis and the man who had stabbed him in his side. He
described what transpired during the stabbing incident
and the fact that he was face-to-face with the person who
stabbed him in his side. He stated that he recognized
the defendant because he recalled the appearance of his
forehead. Mongero described the individuals pictured as
his attacker, DeSantis’ attacker, and the man “who set
it up . . . .” Mongero testified that, after looking at the
photographs, he read the article.
Mongero agreed that, at the time of the stabbing, he
was on “high alert” and “paying attention” when the
defendant and Hedley came to his bedroom, as he did not
know them. Mongero stated that the man who pinned
him against the recliner in his bedroom and stabbed him
in his side was not wearing a mask, glasses, or a hat,
and he recalled specific details about the man’s physical
appearance. Mongero testified that he provided the police
with a physical description of the perpetrators both at
the hospital and the following day.
Mongero testified that, at the time that he provided
his written statement to Williams, he believed that the
police no longer needed his help to apprehend the perpe-
trators involved in the stabbing incident at his residence.
Mongero testified that Williams had “reaffirmed” to
him that, in light of the fact that the police had obtained
incriminating DNA evidence, the police had this case
“in the bag.”
In support of his motion to suppress, the defendant
focused on the fact that Mongero identified him only after
seeing his photograph in the newspaper and learning that
he, Hedley, and Trejo had been arrested. The defendant
also argued that the identification was not reliable when
considered in light of several factors, as set forth in State
v. Guilbert, 306 Conn. 218, 237–39, 49 A.3d 705 (2012),
that are relevant in assessing the reliability of eyewitness
State v. Harvey

identifications.11 The defendant also argued that, in light
of the suggestive out-of-court identification, an in-court
identification of him by Mongero could not satisfy the
requirements of State v. Dickson, 322 Conn. 410, 141
A.3d 810 (2016), cert. denied, 582 U.S. 922, 137 S. Ct.
2263, 198 L. Ed. 2d 713 (2017), in which our Supreme
Court held that, “in cases in which identity is an issue,
in-court identifications that are not preceded by a suc-
cessful identification in a nonsuggestive identification
procedure implicate due process principles and, there-
fore, must be prescreened by the trial court.” (Footnote
omitted.) Id., 415.
The court denied the motion to suppress and, on
November 16, 2021, the court, in an oral ruling, articu-
lated the reasons for its denial. The court stated that the
initial identification of the defendant by Mongero was not
the result of a suggestive police procedure because “[t]he
police neither solicited the witness’ viewing of this pho-
tograph nor . . . requested the newspaper to publish the
article in question.” The court stated that when the police
learned that Mongero had seen the article months later,
they ended all further identification procedures based
upon what they believed would have been a duplicative
use of the photograph that appeared in the newspaper,
which was the only photograph of the defendant in the
possession of the police. Thus, the court determined that,
in light of the absence of state action with respect to the
identification, the defendant’s federal due process rights
were not infringed in this case.
The court then explained that it was necessary to deter-
mine whether the identification procedure was unneces-
sarily suggestive and, if so, whether the out-of-court
identification could nonetheless be deemed reliable and
worthy of admission. The court stated: “It is this court’s
opinion that the identification was in fact suggestive.
The witness was told to look at the newspaper picture
by . . . a fellow complainant in this particular case who
11
We will discuss the factors set forth in Guilbert in part III C of this
opinion.
State v. Harvey

stated that the picture was . . . of the guy who tried to
kill us . . . .
“The friend then sent the picture directly to the witness
who viewed it while reading the article and the captions
associated with the pictures. While the article did pro-
vide three separate pictures, all were of men accused of
having been arrested and involved in the assault at the
witness’ home.
“So, having found that it is in fact suggestive, the ques-
tion then becomes whether or not, [not]withstanding the
suggestiveness of the identification, the identification
of the defendant is nonetheless reliable.
“The court will look to the totality of the circumstances
and determine whether or not the suggestive procedure
would give rise to a substantial likelihood of irreputable
misidentification. . . .
“Applying [the factors that are relevant to the issue
of reliability] to the facts of this case as presented to
this court during testimony on the motion to suppress,
this court finds that the witness’ identification of the
defendant is in fact reliable.
“[Mongero’s] opportunity to view his predator during
the incident himself [was] substantial. They were in close
proximity to each other for a majority of the incident
and at one point were in fact face-to-face. The lighting
conditions were favorable. There was no obstruction or
impediments to the witness’ ability to be able to view
the defendant.
“Although the circumstances of the event were cer-
tainly stressful, testimony was that, because the witness
had only expected one person to be entering his house,
when he saw multiple people, it heightened his sense[s]
and he was suspicious and, therefore, was paying closer
attention to the circumstances surrounding him.
“The description that the witness gave to the police
at the time or in close proximity to the incident itself
have remained consistent and are in fact consistent with
State v. Harvey

the description of the defendant himself. The witness’
description of the defendant in fact did not change and
that stands true even in light of the fact that the witness
was asked by the police and participated in multiple other
identification procedures where he was shown photo
arrays but did not make any identification. So, there
is no false identifications or identifications that later
turned out not to be accurate.
“In fact, the only identification that [Mongero] did
make was when he ultimately saw the picture that was in
the newspaper. All of these things add to the fact that, in
this court’s opinion, the circumstances and the totality
of the circumstances in this particular case based upon
this witness’ identification lead to the conclusion that
it is in fact a reliable identification and, therefore, the
court will deny the defendant’s motion to suppress.”
In addition to denying the motion to suppress with
respect to the initial, out-of-court identification of the
defendant by Mongero, the court also denied the motion
to suppress Mongero’s in-court identification of the
defendant that was anticipated to occur at trial. The
court, relying on State v. Scott, 191 Conn. App. 315,
214 A.3d 871, cert. denied, 333 Conn. 917, 216 A.3d
651 (2019), reasoned that, because it had determined
that Mongero’s initial identification was reliable, “that
then necessarily does allow for the in-court identifica-
tion procedure to take place, as well.” The court reasoned
that the defendant’s reliance on State v. Dickson, supra,
322 Conn. 410, to demonstrate the existence of a due
process violation was not persuasive because the initial
identification made by Mongero did not involve a state
actor. Moreover, the court reasoned that, even if the
due process protections required by Dickson applied in
this case, Dickson did not require the suppression of
the in-court identification because the court at the time
of the suppression hearing had prescreened the initial
identification and determined that it was reliable.
After the court denied the motion to suppress, Mongero
testified with respect to the events that transpired at his
State v. Harvey

residence on May 23, 2018, and the circumstances under
which he had observed the three perpetrators. Consistent
with his testimony at the suppression hearing, Mongero
testified that he identified the defendant in the newspa-
per article that DeSantis sent to him. Mongero stated
that, when he opened the article, and before reading
its contents, “I immediately saw my attacker . . . when
I looked [at] it.” The photographs from the article were
admitted into evidence. Mongero identified the defen-
dant’s photograph to depict the person who stabbed him,
Hedley’s photograph to depict the person who stabbed
DeSantis, and Trejo’s photograph to depict the person
who he knew as “Lean Lick.” The defendant also made
an in-court identification of the defendant as the man
who had stabbed him in his side.
Reiterating the arguments that he advanced at trial,
the defendant argues that “[t]he . . . court should have
suppressed Mongero’s out-of-court and in-court iden-
tifications because his out-of-court identification was
made under highly suggestive circumstances and was
unreliable.” The defendant argues that the court, in
concluding that his due process rights had not been
infringed, improperly determined that the out-of-court
identification of him by Mongero was not the product of
state action. According to the defendant, although the
police did not show the newspaper article to the defen-
dant, “they never bothered to conduct an identification
procedure that included the defendant or his photo once
he was in custody, which was at least five months before
the article was published.” The defendant argues that
“[t]he failure of the police to take the earliest opportu-
nity for Mongero to identify the defendant once they
had him in custody was inconsistent with the dictates of
Dickson, and its inaction constitutes state action.” The
defendant also argues that the admission of the in-court
identification violated his due process rights because it
was a first-time identification and the court failed to pre-
screen the identification to ensure that Mongero reliably
could identify him. Finally, the defendant challenges the
determination, made by the court in denying the motion
State v. Harvey

to suppress, that the identification evidence was reliable.
Related to this challenge, the defendant also argues, on
evidentiary grounds, that the court, in its gatekeep-
ing role, should have precluded the identifications on
evidentiary grounds because they were unreliable and
misleading in nature. The defendant preserved every
aspect of the present claim by means of the arguments
advanced by defense counsel in support of the motion
to suppress.
“[T]he standard of review for a motion to suppress is
well settled. A finding of fact will not be disturbed unless
it is clearly erroneous in view of the evidence and plead-
ings in the whole record . . . . [W]hen a question of fact is
essential to the outcome of a particular legal determina-
tion that implicates a defendant’s constitutional rights,
[however] . . . our customary deference to the trial court’s
factual findings is tempered by a scrupulous examina-
tion of the record to ascertain that the trial court’s fac-
tual findings are supported by substantial evidence. . . .
[When] the legal conclusions of the court are challenged,
[our review is plenary, and] we must determine whether
they are legally and logically correct and whether they
find support in the facts [found by the trial court] . . . .”
(Internal quotation marks omitted.) State v. Johnson,
354 Conn. 96, 111–12, 349 A.3d 260 (2026).
A
First, we address the defendant’s claim that the court
improperly denied his motion to suppress Mongero’s
out-of-court identification of him because it violated his
right to due process. As stated previously in this opin-
ion, the court rejected this claim on the ground that the
defendant could not demonstrate a due process violation
in light of the fact that the out-of-court identification
occurred when DeSantis, who is undisputably a private
actor, sent Mongero the newspaper article that included
photographs of the defendant, Hedley, and Trejo. The
defendant does not challenge the court’s findings of fact
concerning the out-of-court identification. Instead, the
defendant argues that state action occurred in connection
State v. Harvey

with the out-of-court identification because the police
did not attempt to have Mongero identify him after he
was in police custody and before the newspaper article
was published.
Our Supreme Court has observed that, “[b]ecause the
[fourteenth] [a]mendment is directed at the states, it can
be violated only by conduct that may be fairly character-
ized as state action. . . . [T]he [f]ourteenth [a]mendment,
which prohibits the states from denying federal constitu-
tional rights and which guarantees due process, applies
to acts of the states, not to acts of private persons or
entities. . . . The most outrageous behavior by a private
party seeking to secure evidence against a defendant
does not make that evidence inadmissible under the [d]ue
[p]rocess [c]lause.” (Citations omitted; internal quota-
tion marks omitted.) State v. Holliman, 214 Conn. 38,
43, 570 A.2d 680 (1990).
The court found that the out-of-court identification
was not the product of state action, and our scrupulous
examination of the record supports that finding. Even
if the defendant is correct that the police had an oppor-
tunity to attempt to obtain an identification prior to the
time that DeSantis shared the newspaper article with
Mongero, such inaction by the state did not taint the
identification that occurred by means of a private actor.
“[I]t is well established that conduct that may fairly be
characterized as state action is a necessary predicate to a
challenge under the due process clause of the fourteenth
amendment to the United States constitution.” Id., 45.
In Dickson, our Supreme Court held that due process
requires the trial court to prescreen first-time in-court
identifications in cases in which identity is at issue. State
v. Dickson, supra, 322 Conn. 426. We discuss Dickson
in greater detail in part III B of this opinion when we
address the defendant’s claim that the trial court improp-
erly denied his motion to suppress Mongero’s in-court
identification of him. In Dickson, our Supreme Court
stated that “the best practice is to conduct a nonsug-
gestive identification procedure as soon after the crime
State v. Harvey

as is possible. . . . It is our hope and expectation that
this decision will provide an incentive for the state to
conduct an out-of-court identification procedure before
seeing an in-court identification, thereby obviating the
need to resort to the [prescreening] procedures that we
delineate herein.” (Citation omitted.) Id., 445. The court
also stated, “We simply can perceive no reason why the
state cannot attempt to obtain an identification using a
lineup or photographic array before asking an eyewit-
ness to identify the defendant in court. Although the
state is not constitutionally required to do so, it would
be absurd to conclude that the state can simply decline to
conduct a nonsuggestive procedure and then claim that
its own conduct rendered a first time in-court identifica-
tion necessary, thereby curing it of any constitutional
infirmity.” (Emphasis in original.) Id., 436.
In his attempt to demonstrate that a due process viola-
tion occurred in the present case, the defendant, relying
on the foregoing language from Dickson, argues that
state action occurred in connection with the out-of-court
identification in that there was “deliberate” inaction by
the police in that they did not ask Mongero to identify
him at the earliest opportunity by means of a nonsug-
gestive identification procedure. The defendant argues
that, once he was in the custody of the Commissioner of
Correction, the police could have administered a pho-
tographic array to Mongero or have arranged for a line
up identification with the defendant and other males
who resembled him. He argues that “[t]he failure of the
police to take the earliest opportunity for Mongero to
identify the defendant once they had him in custody
was inconsistent with the dictates of Dickson, and its
inaction constitutes state action.”
The evidence at the suppression hearing on which the
court relied undermines the defendant’s argument that
the type of deliberate inaction discussed by the court
in Dickson occurred in this case. Williams testified at
the suppression hearing that, in January 2021, after
Mongero was released from incarceration, in advance
State v. Harvey

of the trial, and at the behest of the state’s attorney, he
spoke to Mongero by phone for the purpose of having him
view a photographic array to identify the defendant. At
that time, Mongero informed him that he already had
reviewed the newspaper article that contained the defen-
dant’s photograph and that he recognized the defendant.
Williams testified with respect to his reasons for not con-
ducting an identification procedure while Mongero and
the defendant were incarcerated at the same correctional
facility, as well as his reasons for not administering an
array after Mongero informed him that he had positively
identified the defendant by means of the newspaper
article. In March 2021, Williams met with Mongero to
obtain a written statement that memorialized the out-
of-court identification that had occurred when DeSantis
shared the newspaper article with Mongero. The court
found that the police “ended all further identification
procedures based upon what they felt would have been
a duplicative use of the picture that had already been
published in the newspaper, as that was the only photo-
graph in police possession of the defendant.” On the basis
of the evidence presented at the suppression hearing,
the court found that there had been no “inappropriate
conduct” by a state actor with respect to the identifica-
tion issue before it. On this record, the defendant has
not undermined that finding. The defendant has not
demonstrated that the present case involves a scenario
in which the state had deliberately refused to conduct a
pretrial investigation in favor of having an eyewitness
confront an accused for the first time in court. Thus, we
are not persuaded that the steps taken by the state in the
present case, which have not been shown to be unreason-
able under the circumstances, were tantamount to the
type of deliberate inaction that Dickson forbids.12
12
We are not suggesting, however, that evidence that the police did
not obtain an out-of-court identification at the earliest possible time is
not relevant in an analysis of the reliability of Mongero’s identifications
of the defendant. In Dickson, our Supreme Court recognized that “[t]he
possibility of [a] defendant’s appearance changing over time is one of
many reasons that the state should conduct an identification procedure
State v. Harvey

B
Next, we address the defendant’s claim that the court
improperly denied his motion to suppress Mongero’s
in-court identification because it violated his right to
due process. The defendant argues that the in-court
identification was a “first-time identification” that was
not preceded by a successful identification in a nonsug-
gestive identification procedure. As stated previously,
the defendant claims that state action occurred in con-
nection with the out-of-court identification in that there
was “deliberate” inaction by the police in that they did not
ask Mongero to identify him at the earliest opportunity
by means of a nonsuggestive identification procedure.
The defendant argues that, pursuant to the procedure
set forth by our Supreme Court in State v. Dickson,
supra, 322 Conn. 410, the court was obligated to first
consider whether Mongero could reliably identify him
prior to the first-time in-court identification, but that
it failed to do so.
In State v. Dickson, supra, 322 Conn. 410, in which our
Supreme Court held that, in cases in which identity is an
issue, “first time in-court identifications, like in-court
identifications that are tainted by an unduly sugges-
tive out-of-court identification, implicate due process
protections and must be prescreened by the trial court.”
Id., 426. It is important to observe that, in Dickson,
our Supreme Court distinguished between eyewitness
at the earliest possible time when identity is at issue in a case.” State
v. Dickson, supra, 322 Conn. 438 n.21.
We do not agree with the defendant that state action occurred in con-
nection with the out-of-court identification. In part III B of this opinion,
we conclude that the prescreening procedures required by Dickson do
not apply to the in-court identification that occurred at trial. Nonethe-
less, as we discuss more fully in part III C of this opinion, we recognize
that an out-of-court identification that was not obtained at the earliest
possible moment by the police is one of many factors that may be rel-
evant to assessing the reliability of an identification obtained at a later
time. See id., 421 (assessment of reliability of identification includes
consideration of time between crime and identification); see also Neil
v. Biggers, 409 U.S. 188, 201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)
(factors to be considered in evaluating likelihood of misidentification
include length of time between crime and identification procedure).
State v. Harvey

identifications that involved private actors versus those
that involved state actors. The court explained that, “[i]n
the absence of unduly suggestive procedures conducted
by state actors, the potential unreliability of eyewitness
identification testimony ordinarily goes to the weight of
the evidence, not its admissibility, and is a question for
the jury. . . . Principles of due process require exclusion
of unreliable identification evidence that is not the result
of an unnecessarily suggestive procedure [o]nly when
[the] evidence is so extremely unfair that its admission
violates fundamental conceptions of justice . . . .
“A different standard applies when the defendant
[as in this case] contends that an in-court identification
followed an unduly suggestive pretrial investigation
procedure that was conducted by a state actor. In such
cases, both the initial identification and the in-court
identification may be excluded if the improper procedure
created a substantial likelihood of misidentification. . . .
“In determining whether identification procedures
violate a defendant’s due process rights, the required
inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification
procedure was unnecessarily suggestive; and second, if it
is found to have been so, it must be determined whether
the identification was nevertheless reliable based on
examination of the totality of the circumstances. . . .
“If the trial court determines that there was no unduly
suggestive identification procedure, that is the end of the
analysis, and the identification evidence is admissible. . . .
“If the court finds that there was an unduly sugges-
tive procedure, the court goes on to address the second
reliability prong, under which the corruptive effect of
the suggestive procedure is weighed against certain fac-
tors, such as the opportunity of the [eyewitness] to view
the criminal at the time of the crime, the [eyewitness’]
degree of attention, the accuracy of [the eyewitness’]
prior description of the criminal, the level of certainty
demonstrated at the [identification] and the time between
State v. Harvey

the crime and the [identification].” (Citations omitted;
internal quotation marks omitted.) Id., 419–21.
We are not persuaded by the defendant’s arguments for
several reasons. First, the narrow issue before the court
in Dickson was whether first-time in-court identifications
are inherently suggestive and, thus, such identifications
should be subject to prescreening by the court, just like
other identifications that are the result of unduly sug-
gestive identification procedures. Id., 423. The court
in Dickson concluded that first-time in-court identifica-
tions, like in-court identifications that are tainted by an
unduly suggestive out-of-court identification, implicate
a defendant’s due process rights and must be prescreened
by the trial court. Id., 426. With respect to the procedure
to be followed in such cases, the court stated: “[I]n cases
in which the identity of the perpetrator is at issue and
there are eyewitnesses to the crime, the best practice is
to conduct a nonsuggestive identification procedure as
soon after the crime as is possible. . . . It is our hope and
expectation that this decision will provide an incentive
for the state to conduct an out-of-court identification pro-
cedure before seeking an in-court identification, thereby
obviating the need to resort to the procedures that we
delineate herein.
“In cases in which there has been no pretrial identifi-
cation, however, and the state intends to present a first
time in-court identification, the state must first request
permission to do so from the trial court. . . . The trial
court may grant such permission only if it determines
that there is no factual dispute as to the identity of the
perpetrator, or the ability of the particular eyewitness to
identify the defendant is not at issue. . . . For example,
in cases in which the trial court determines that the only
issue in dispute is whether the acts that the defendant
admittedly performed constituted a crime, the court
should permit a first time in-court identification. In
cases in which the defendant concedes that identity or
the ability of a particular witness to identify the defen-
dant as the perpetrator is not in dispute, the state may
State v. Harvey

satisfy the prescreening requirement by giving written
or oral notice to that effect on the record.
“If the trial court determines that the state will not
be allowed to conduct a first time identification in court,
the state may request permission to conduct a nonsug-
gestive identification procedure, namely, at the state’s
option, an out-of-court lineup or photographic array,
and the trial court ordinarily should grant the state’s
request. If the witness previously has been unable to
identify the defendant in a nonsuggestive identification
procedure, however, the court should not allow a second
nonsuggestive identification procedure unless the state
can provide a good reason why a second bite at the apple
is warranted. If the eyewitness is able to identify the
defendant in a nonsuggestive out-of-court procedure,
the state may then ask the eyewitness to identify the
defendant in court.
“If the trial court denies a request for a nonsugges-
tive procedure, the state declines to conduct one, or the
eyewitness is unable to identify the defendant in such a
procedure, a one-on-one in-court identification should not
be allowed. The prosecutor may still examine the witness,
however, about his or her observations of the perpetra-
tor at the time of the crime, but the prosecutor should
avoid asking the witness if the defendant resembles the
perpetrator.” (Citations omitted; footnotes omitted.)
Id., 445–47.
Contrary to the defendant’s characterization of Mon-
gero’s in-court identification, it was not a first-time
identification. It is not in dispute that Mongero identi-
fied the defendant as the perpetrator at the time that
DeSantis shared the newspaper article with him. Nor
is it in dispute that, prior to the time of trial, Mongero
told Williams that the article correctly had identified the
three perpetrators whose photographs appeared therein.
Second, although the in-court identification that was
elicited by the prosecutor involved state action; see id.,
426 (prosecutor’s conduct in court can amount to state
State v. Harvey

action implicating due process rights); the out-of-court
identification did not involve state action. The court in
Dickson stated that, “[i]n the absence of unduly sugges-
tive procedures conducted by state actors, the potential
unreliability of eyewitness identification testimony ordi-
narily goes to the weight of the evidence, not its admis-
sibility, and is a question for the jury.” Id., 419.
Finally, although the prescreening requirement set
forth in Dickson did not apply in this case, in which
there was an absence of an unduly suggestive procedure
conducted by a state actor, the court nonetheless pre-
screened the in-court identification as though it had been
preceded by an unduly suggestive procedure conducted
by a state actor. As we noted previously in this opinion,
the court in Dickson explained that, “[i]n the absence of
unduly suggestive procedures conducted by state actors,
the potential unreliability of eyewitness identification
testimony ordinarily goes to the weight of the evidence,
not its admissibility, and is a question for the jury.” Id.
The court in Dickson, however, noted that “[a] different
standard applies when the defendant contends that an
in-court identification followed an unduly suggestive
pretrial identification procedure that was conducted by
a state actor. In such cases, both the initial identification
and the in-court identification may be excluded if the
improper procedure created a substantial likelihood of
misidentification.” Id., 420.
The court in the present case found, and the state
does not dispute, that the out-of-court identification
procedure that occurred in this case was unnecessar-
ily suggestive. The court then considered, in light of
the totality of the circumstances, whether the out-of-
court identification was reliable, correctly focusing on
“whether or not the suggestive procedure [that occurred
in the present case] would give rise to a substantial likeli-
hood of irreputable misidentification.” After the court
concluded that the out-of-court identification was reli-
able, it stated that its determination “necessarily . . .
State v. Harvey

allow[ed] for the in-court identification procedure to
take place, as well.”13
In light of the foregoing, the defendant is unable to
demonstrate that his due process rights were violated in
connection with the in-court identification because the
court was obligated to follow the prescreening procedure
set forth in Dickson but failed to do so.
C
The defendant also claims that the court erred in con-
cluding that the identification evidence was reliable. We
are not persuaded.
As stated previously in this opinion, in arguing that
the identification evidence should be suppressed, the
defendant argued before the trial court and argues pres-
ently that the out-of-court identification was made under
unnecessarily suggestive circumstances that gave rise to
a substantial likelihood of misidentification. In its deci-
sion denying the motion to suppress, the court concluded
that the out-of-court identification, having been made in
connection with an unnecessarily suggestive identifica-
tion procedure, was reliable and, consequently, that the
in-court identification was reliable.
The defendant argues that, if this court concludes
that there was no improper state action in connection
with the identifications made by Mongero, we should
nonetheless conclude, in light of criteria applicable to
due process claims, that the trial court erred in deter-
mining that they were reliable.14 The defendant argues
13
In part III C of this opinion, we will address separately the defen-
dant’s claim that the court improperly determined that the identifica-
tion evidence was reliable.
14
We note that the defendant also argues that, even if the identifica-
tions did not implicate his right to due process, the court, in its gate-
keeping role, should have suppressed the identifications because they
amounted to unreliable and misleading evidence “as a matter of eviden-
tiary law.” We recognize that evidence that is unreliable or tends to mis-
lead the jury may be deemed inadmissible on purely evidentiary grounds.
See Conn. Code Evid. § 4-3 (“[r]elevant evidence may be excluded if its
probative value is outweighed by the danger of . . . misleading the jury”);
State v. Harvey

that, pursuant to State v. Holliman, supra, 214 Conn.
38, the out-of-court identification stemming from the
conduct of private actors was not reliable and that it
tainted the in-court identification. In Holliman, our
Supreme Court stated that “the criteria established for
determining the admissibility of identifications in the due
process context are appropriate guidelines by which to
determine the admissibility of identifications that result
from procedures conducted by civilians. . . . [F]irst, it
must be determined whether the identification procedure
was unnecessarily suggestive, and second, if it is found
to be so, it must be determined whether the identifica-
tion was nevertheless reliable based on an examination
of the totality of the circumstances.” (Footnote omitted;
internal quotation marks omitted.) Id., 46.
In State v. Guilbert, supra, 306 Conn. 218, our Supreme
Court, articulating an evidentiary rule, set forth factors
that are relevant in assessing the reliability of eyewitness
identifications, stating that “[c]ourts across the country
now accept that (1) there is at best a weak correlation
between a witness’ confidence in his or her identification
and its accuracy, (2) the reliability of an identification can
be diminished by a witness’ focus on a weapon, (3) high
stress at the time of observation may render a witness
less able to retain an accurate perception and memory of
the observed events, (4) cross-racial identifications are
considerably less accurate than same race identifications,
(5) a person’s memory diminishes rapidly over a period of
hours rather than days or weeks, (6) identifications are
State v. Michael H., 291 Conn. 754, 767, 970 A.2d 113 (2009) (trial
court serves “gatekeeping function with regard to unreliable evidence”).
We have already concluded that there was no state action involved in
the out-of-court identification that was the result of DeSantis acting
alone. The trial court, however, properly evaluated the reliability of
the identifications in light of the factors that apply when state action
is involved. See State v. Holliman, supra, 214 Conn. 46 (criteria for
determining admissibility in due process context are appropriate for
determining admissibility of identifications resulting from procedures
conducted by civilians). Because we reject the defendant’s argument
that the court did not properly consider these factors, it follows that he
is unable to demonstrate that the court abused its discretion in failing
to exclude the evidence on purely evidentiary grounds.
State v. Harvey

likely to be less reliable in the absence of a double-blind,
sequential identification procedure, (7) witnesses are
prone to develop unwarranted confidence in their identifi-
cations if they are privy to postevent or postidentification
information about the event or the identification, and
(8) the accuracy of an eyewitness identification may be
undermined by unconscious transference, which occurs
when a person seen in one context is confused with a per-
son seen in another. This list is not exhaustive; courts
have permitted expert testimony on other factors deemed
to affect the accuracy of eyewitness identification tes-
timony.” (Footnotes omitted.) Id., 237–39. Before the
trial court, defense counsel argued that factors three,
four, five, and seven supported his argument that the
out-of-court identification should be suppressed.
In State v. Harris, 330 Conn. 91, 191 A.3d 119 (2018),
our Supreme Court stated that “[a]n identification that
is the product of an unnecessarily suggestive identifica-
tion procedure will nevertheless be admissible, despite
the suggestiveness of the procedure, if the identification
is reliable in light of all the relevant circumstances. See,
e.g., State v. Marquez, [291 Conn. 122, 141, 967 A.2d
56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L.
Ed. 2d 163 (2009)]. As mandated in Neil v. Biggers,
[409 U.S. 188, 196–97, 93 S. Ct. 375, 34 L. Ed. 2d 401
(1972)], and reiterated by the court in Manson v. Brath-
waite, [432 U.S. 98, 113–14, 97 S. Ct. 2243, 53 L. Ed.
2d 140 (1977)], for federal constitutional purposes, we
determine whether an identification resulting from an
unnecessarily suggestive procedure is reliable under
the totality of the circumstances by comparing the cor-
rupting effect of the suggestive identification against
factors including the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree
of attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at the
[identification], and the time between the crime and the
[identification].” (Internal quotation marks omitted.)
State v. Harris, supra, 108. In evaluating the reliabil-
ity of an identification on due process grounds, courts
State v. Harvey

have also looked to “the degree of contact or number of
confrontations the witness had with the defendant prior
to trial.” (Internal quotation marks omitted.) State v.
Garner, 270 Conn. 458, 469, 853 A.2d 478 (2004).
In Harris, our Supreme Court concluded, as a matter
of state constitutional law, that it was appropriate to
modify the Biggers framework and to endorse the fac-
tors for determining the reliability of an identification
that it identified as a matter of state evidentiary law in
State v. Guilbert, supra, 306 Conn. 253.15 State v. Har-
ris, supra, 330 Conn. 115. The court in Harris also stated
that “[a reviewing court] will reverse the trial court’s
ruling [on the admissibility of evidence] only [when]
there is an abuse of discretion or [when] an injustice
has occurred . . . and we will indulge in every reason-
able presumption in favor of the trial court’s ruling. . . .
Because the inquiry into whether evidence of pretrial
15
Additionally, the court in Harris determined the proper framework,
for state constitutional purposes, for evaluating the reliability of an
identification that is the result of an unnecessarily suggestive identifica-
tion procedure. The court concluded that, “to obtain a pretrial hearing
[on the reliability of an identification that is the result of an unnecessar-
ily suggestive identification procedure as a matter of due process under
the state constitution], the defendant has the initial burden of offering
some evidence that a system variable undermined the reliability of the
eyewitness identification. . . . If the defendant meets this burden, the
state must then offer evidence demonstrating that the identification
was reliable in light of all relevant system and estimator variables. . . .
If the state adduces such evidence, the defendant must then prove a
very substantial likelihood of misidentification. . . . If the defendant
meets that burden of proof, the identification must be suppressed.”
(Citations omitted.) State v. Harris, supra, 330 Conn. 131. The court
in Harris further explained “that the requirement that the defendant
provide some evidence of suggestiveness may necessitate somewhat less
evidence to trigger the admissibility inquiry than is required under
the Biggers framework. . . . [T]his lower threshold is appropriate both
because it will provide more meaningful deterrence and because more
extensive hearings will address reliability with greater care and better
reflect how memory works. . . . In the absence of evidence of a suggestive
procedure or other extraordinary circumstances, however, we continue
to believe that evidence relating solely to estimator factors that affect
the reliability of the identification goes to the weight, not the admis-
sibility, of the identification.” (Citations omitted; internal quotation
marks omitted.) Id., 132.
State v. Harvey

identification should be suppressed contemplates a series
of [fact bound] determinations, which a trial court is
far better equipped than this court to make, we will not
disturb the findings of the trial court as to subordinate
facts unless the record reveals clear and manifest error. . .
. Finally, the burden rests with the defendant to establish
both that the identification procedure was unnecessar-
ily suggestive and that the resulting identification was
unreliable.” (Citation omitted; internal quotation marks
omitted.) Id., 102.
As we stated previously in this opinion, the court
found, and the state does not dispute, that the out-of-
court identification procedure that occurred in this case
was unnecessarily suggestive. The court then made
numerous findings with respect to the issue of reliability.
The court found that “Mongero’s opportunity to view
his predator [for himself] during the incident . . . [was]
substantial. They were in close proximity to each other
for a majority of the incident and at one point were in
fact face-to-face. The lighting conditions were favorable.
There was no obstruction or impediments to the witness’
ability to be able to view the defendant.
“Although the circumstances of the event were cer-
tainly stressful, testimony was that because the witness
had only expected one person to be entering his house,
when he saw multiple people, it heightened his sense[s]
and he was suspicious and, therefore, was paying closer
attention to the circumstances surrounding him.
“The description that the witness gave to the police
at the time or in close proximity to the incident itself
have remained consistent and are in fact consistent with
the description of the defendant himself. The witness’
description of the defendant in fact did not change and
that stands true even in light of the fact that the witness
was asked by the police and participated in multiple other
identification procedures where he was shown photo
arrays but did not make any identification. So, there
is no false identifications or identifications that later
turned out not to be accurate.
State v. Harvey

“In fact, the only identification that [Mongero] did
make was when he ultimately saw the picture that was in
the newspaper. All of these things add to the fact that, in
this court’s opinion, the circumstances and the totality
of the circumstances in this particular case based upon
this witness’ identification lead to the conclusion that
it is in fact a reliable identification . . . .”
In challenging some of the court’s specific subordi-
nate findings, the defendant argues that the evidence
did not support the finding that the lighting conditions
were favorable because Mongero did not so testify. At
the suppression hearing, Mongero testified that the
incident occurred on May 23, 2018, and the room where
the incident occurred was approximately forty to fifty
square feet in size.16 When asked during the suppression
hearing whether he recognized the men shown in the
photographs in the newspaper article, Mongero testified
that he saw DeSantis’ attacker whom “I had the best view
on, because he was standing near my window and where
the most light was coming in.” (Emphasis added.) When
asked whether he recognized “a second individual,” Mon-
gero testified that “for sure” he recognized the person
who was “in my face with a knife in my side.” Although
Mongero did not testify that the lighting conditions
were favorable, the evidence reflects that there was light
coming into the room from at least one source, a window,
and that Mongero did not express any hesitation with
respect to his ability to observe and describe the physical
appearances of the men in his bedroom. On the basis of
this testimony and the rational inferences to be drawn
therefrom, the court reasonably could have found that
the lighting conditions were favorable.
The defendant also argues that the evidence did not
support the court’s finding that there was no obstruction
or impediment to Mongero’s ability to view the defendant
at the time of the assault. According to the defendant,
16
At the time of trial, the state presented evidence that the incident
occurred in the month of May at approximately 6:30 p.m., which is
consistent with Mongero’s testimony that sunlight was visible to him
through the bedroom window.
State v. Harvey

this finding is contradicted by Mongero’s testimony at
the suppression hearing that, when the defendant was in
his lap, face-to-face with him, his dreadlocks were block-
ing his face “a little bit.” At the suppression hearing,
Mongero also testified that the defendant was not wear-
ing a mask, a hat, or glasses. Mongero testified that the
defendant had “[a] distinctive hairstyle” but agreed that
he nonetheless got “a good look” at him. The defendant’s
dreadlocks are an aspect of his physical appearance, and
Mongero did not hesitate in recalling and describing
the defendant’s physical attributes, specifically stating
that he recognized the defendant’s forehead. Viewing
the evidence in its totality and the reasonable infer-
ences that may be drawn from the evidence, Mongero’s
testimony that, at the time that the defendant was in a
physical altercation with him and face-to-face with him,
the defendant’s dreadlocks blocked his face “a little bit”
does not undermine the court’s general observation that
there was no obstruction or impediment to Mongero’s
ability to view the defendant.
Finally, the defendant points to a variety of consid-
erations that he believes were ignored by the court and
rendered the out-of-court identification unreliable. First,
according to the defendant, the physical description
that Mongero provided to the police at the time of the
altercation was vague. Mongero told the police that the
perpetrator had dreadlocks, and the defendant’s pho-
tograph in the newspaper did not show him with dread-
locks. Second, the fact that Mongero did not inaccurately
identify him prior to the identification did not weigh in
favor of the finding of reliability because the police did
not conduct a nonsuggestive identification procedure
with respect to him. Third, in 2018, the police showed
Mongero a photographic array that included Hedley, but
Mongero was unable to positively identify him. Fourth,
two years had passed before Mongero viewed the news-
paper article, and the defendant’s photograph appeared
in that article with a photograph of Trejo, someone who
was known to Mongero. Fifth, during the altercation,
Mongero was grappling with the perpetrator to control
State v. Harvey

the knife and “he was likely focused on the knife and
not on his attacker’s face, which reduces reliability.”
Sixth, “[h]igh stress situations such as these, as well as
the passage of time, make a witness less able to retain an
accurate perception and memory of the observed events.”
(Internal quotation marks omitted.) Seventh, “the court
utterly failed to factor in that Mongero was told that the
defendant had been arrested and his DNA was found on
one of the weapons, and that [Williams] confirmed this
was in the bag, which would have affected the confidence
he had in his identification.” (Internal quotation marks
omitted.) The defendant argues that these considerations
outweigh the factors on which the court relied.
The defendant’s arguments are not persuasive. Mon-
gero’s physical description of the man who stabbed him
in his side was not vague. At the suppression hearing,
Williams testified that, in the immediate aftermath of
the altercation, Mongero told the police that the perpe-
trator that he later identified as the defendant was “a
black male with long dreads and yellow tips.” Mongero
also said the perpetrator was of average build, that he was
approximately five feet, ten inches in height, and in “his
mid-twenties . . . .” Moreover, Mongero told the police
that the perpetrator was wearing a camouflage sweatshirt
and jeans. Further, it does not logically follow that, if
the defendant’s photograph in the newspaper article did
not depict him as having dreadlocks, Mongero could not
reliably recognize him in the photograph.
Also, we are not persuaded that the court erred by
considering the fact that at no time did Mongero mis-
identify the defendant in a nonsuggestive identification
procedure. While this factor is not dispositive of the issue
of reliability, it nonetheless was relevant to the court’s
analysis. Additionally, the fact that Mongero was unable
to identify Hedley when the police showed him Hedley’s
photograph in a nonsuggestive identification procedure
does not undermine the reliability of his identification
of the defendant, with whom Mongero had a longer face-
to-face interaction when the defendant got on top of him
and stabbed him in his side.
State v. Harvey

The defendant correctly observes that (1) two years had
passed before Mongero viewed the newspaper article; (2)
the defendant’s photograph appeared in that article with
a photograph of Trejo, someone who was known to Mon-
gero; (3) during the altercation, Mongero was grappling
with the perpetrator to control the knife; (4) Mongero
observed the defendant during a high stress situation
during which he sustained serious physical injuries;
and (5) Mongero viewed the defendant’s photograph in
a newspaper article that contained information about
the defendant’s arrest and, thereafter, learned from
Williams that DNA evidence supported the defendant’s
arrest. We agree with the defendant that these factors are
part of the totality of the circumstances that are relevant
to an analysis of the issue of reliability in this case. We do
not, however, agree with the defendant that the court did
not take any or all of these factors into consideration in
its evaluation of the reliability of the identification. The
court heard lengthy argument concerning the reliability
of the identification evidence in this case. The fact that
the court did not explicitly discuss these factors in its
ruling does not lead us to conclude that the court over-
looked them; it merely reflects that the court focused on
the factors that supported its finding that the evidence
was reliable. Moreover, we are not persuaded that, just
because there were one or more relevant factors that
did not support the finding of reliability, the court was
legally required to find that the identification was not
reliable. See, e.g., State v. Scott, supra, 191 Conn. App.
338–39 (court is not required to afford more weight to
factors tending generally to undermine reliability); State
v. Day, 171 Conn. App. 784, 822, 158 A.3d 323 (2017)
(same), cert. denied, 330 Conn. 924, 194 A.3d 776 (2018).
The court carefully set forth its findings with respect
to the factors upon which it relied, all of which were
supported by the evidence and by law. An evaluation of
reliability is based on all of the relevant circumstances,
and no single factor is dispositive. Having reviewed the
court’s findings and all of the relevant circumstances, we
State v. Harvey

are not persuaded that the court erroneously determined
that the out-of-court identification was reliable.
Finally, in light of our conclusion that the court did
not err in determining that the out-of-court identifica-
tion was reliable, the defendant is unable to demonstrate
that the court improperly concluded that the in-court
identification was not reliable because it was the product
of—or was tainted by—the unnecessarily suggestive
out-of-court identification procedure that occurred in
this case. In concluding that Mongero’s out-of-court
identification of the defendant was reliable, we neces-
sarily have rejected the defendant’s contention that the
procedure that produced it created a substantial likeli-
hood of misidentification. It follows, therefore, that that
identification “cannot be deemed to have so tainted the
reliability of [the witness’] in-court identification as to
preclude the state from using it.” State v. Scott, supra,
191 Conn. App. 341. For the foregoing reasons, we con-
clude that the trial court did not err in concluding that
the identification evidence was reliable.
IV
Finally, the defendant claims that the court erred in
denying his motion for a new trial based on material
evidence that the prosecution suppressed in violation
of Brady v. Maryland, supra, 373 U.S. 83. We are not
persuaded.
The following additional procedural history is relevant
to this claim. On December 8, 2021, the jury returned
its verdict in this case. The sentencing hearing did not
occur until April 19, 2023. On February 14, 2022, the
defendant filed a motion for a new trial pursuant to Prac-
tice Book § 42-53.17 The defendant alleged the following
17
Practice Book § 42-53 provides in relevant part: “(a) Upon motion
of the defendant, the judicial authority may grant a new trial if it is
required in the interests of justice. Unless the defendant’s noncompli-
ance with these rules or with other requirements of law bars his or her
asserting the error, the judicial authority shall grant the motion: (1) For
an error by reason of which the defendant is constitutionally entitled to
State v. Harvey

relevant facts. On September 7, 2021, the defense filed a
written motion in which it sought from the state, inter
alia, copies of all disciplinary records for Williams. On
October 12, 2021, the state responded to the request by
providing the defendant with a letter dated October 8,
2021, signed by the Danbury police chief, Patrick Riden-
hour, which stated that Williams’ file did not contain past
or pending substantial complaints or discipline related
to misconduct, bias, or untruthfulness. Following the
verdict, however, defense counsel learned that, in early
2021, Williams falsified recertification training atten-
dance records and time sheets related to that training.
This was conduct that subjected him to criminal liabil-
ity for making a false statement. Following an internal
affairs investigation, Williams was suspended without
pay on September 27, 28 and 29, 2021. The defendant
argued that, if these facts about Williams’ disciplinary
record were accurate, “said deprivation of said informa-
tion was materially injurious to the defendant and he
is constitutionally entitled to a new trial.” Thereafter,
the court granted the defendant permission to subpoena
certain disciplinary records of Williams.
On October 24, 2022, the defendant filed an amended
memorandum of law in support of his motion for a new
trial. Therein, the defendant described the allegedly
suppressed information, some or all of which he obtained
by means of a request under the Freedom of Informa-
tion Act, General Statutes § 1-200 et seq., as follows:
“To remain certified as a police officer, the state of Con-
necticut requires police officers to complete sixty hours
of training every three years. Until COVID, that train-
ing was taken in classroom settings, which required
attendance for the total number of training hours, after
which officers were required to submit Review Training
Credit (RTC) forms under oath (subject to violation of
General Statutes § 53a-157b (class A misdemeanor false
statement in the second degree)), indicating the training
subject and hours attended. Detective Williams had been
a new trial; or (2) For any other error which the defendant can establish
was materially injurious to him or her. . . .”
State v. Harvey

a police officer since 2004, thus attending approximately
300 hours of this training before 2020. In 2021, due to
COVID, the state of Connecticut allowed police officers
to attend recertification classes online instead of class-
room training. All Danbury police officers were advised
beforehand that they would only be able to print RTC
forms for signing after they had remained in attendance
for the hours the online course awarded.
“On February 16, 17 and 18, 2021, Williams utilized
the online training platform and submitted RTC forms,
signed under oath, that he had completed twenty-one
hours of required training. Subsequently, an internal
audit revealed that Williams had actually attended only
two and one-half hours of training, despite signing RTC
forms under oath that he had completed twenty-one
hours of training. Williams accomplished this by opening
multiple computer windows and logging into multiple
training classes simultaneously, leaving each window
open until the required time had passed, then printing the
RTC forms awarded and signing each under oath. In total,
Williams submitted twelve RTC forms signed under oath
during the three days, exposing him to twelve years of
incarceration were they determined [to have been] sworn
to falsely. Danbury Police Chief Ridenhour ordered an
internal affairs investigation of Williams’ conduct to
determine whether Williams had violated Connecticut
General Statutes and/or departmental policies. The
internal affairs investigation concluded Williams was
guilty only of ‘failure to perform assigned administra-
tive duties.’ Williams was suspended by Chief Ridenhour
without pay between September 27, 28 and 29, 2021, and
was required to retake the twenty-one hours of training.
“On October 8, 2021 (less than ten days after Williams
served his suspension), Chief Ridenhour provided the
state with a letter indicating [that] a review of Williams’
file showed that he had ‘no substantiated complaints or
discipline related to misconduct, bias or untruthfulness.’
This letter was provided to the defendant shortly before
trial in response to the defendant’s discovery request of
State v. Harvey

Williams’ disciplinary records.” (Footnotes omitted.) The
defendant also stated that, “[i]n early 2022, after the
guilty [verdict], Williams’ union filed a grievance, and,
in early 2022, Chief Ridenhour agreed to the reversal
of his suspension.”
In support of his motion for a new trial and his Brady
claim, the defendant focuses on the following inconsis-
tencies between the trial testimony of Williams and Mon-
gero, which are reflected in the record. Mongero testified
that, upon his arrival at the hospital immediately after
the incident at his residence, he told the police who were
questioning him “to f-off and leave me alone because I
was very injured and I didn’t want to hear their mouth.
I didn’t want . . . to talk to anyone especially the police.
I did not even know what to say to them.” Mongero testi-
fied, however, that, while he was in the operating room
at the hospital, he provided the police with a physical
description of the perpetrators. Mongero testified that,
ultimately, the doctors told the police to leave and that
they could speak to him when he “gets out.”
Mongero testified that, after he was discharged from
the hospital the next day, he immediately went to the
police department because one of the officers had told
him that if he cooperated with them, he would not have
to “worry about” charges related to the illegal drugs
that the police found in his residence. Mongero agreed
that, “on a very minimalistic level,” the police conveyed
that, if he helped them, they would help him. Mongero
also testified that “[the police] couldn’t get . . . any sort
of information from me [at the hospital on the prior day
because] I didn’t even know they were detectives. So,
they wanted me to talk, come talk to them.” Mongero
further explained that, initially, he was hesitant to help
the police, stating, “I was afraid of what charges they
might bring against me for what pills were found.”
Defense counsel thoroughly cross-examined Mon-
gero with respect to his reasons for cooperating with
the police. Although he expressed his concern about
being prosecuted for the drugs found in his residence,
State v. Harvey

he nonetheless maintained that this was not his primary
concern when he went to the police department. Mongero
testified: “I was more concerned because my covictim was
stabbed and had to have heart surgery and almost died.
Much more so than me, [DeSantis] was very hurt, and I
was more concerned—and he wasn’t living the lifestyle
like I was. He didn’t—he kind of got caught in the mix
of something he didn’t sign up for. So, that’s the main
reason I decided to cooperate.”
Mongero also testified that, after he saw the newspaper
article that DeSantis sent to him, the police called him
and asked him “if it was true that [he] had seen the pic-
ture . . . .” Mongero testified that the police had learned
that DeSantis had showed him the article and wanted
to know if what he said to DeSantis about the article
was true, that he recognized the men pictured therein.
Defense counsel asked Mongero if his identification of
the perpetrators was motivated by a desire to avoid the
penalties that would result from his possession of illegal
drugs, to which Mongero replied that he was “just trying
to tell the truth.”
In contrast to Mongero’s testimony as to these specific
issues, Williams testified that neither he nor the other
detectives in his squad asked Mongero to come to the
police department, but that he walked into the police
department after he was discharged from the hospital
“on his own accord.” Williams also testified that, when
he called Mongero to invite him to view a photographic
array, Mongero informed him that “he already saw a
picture of [the defendant]” that he had received from
DeSantis.
In support of his motion for a new trial, the defendant
argued in relevant part that “Mongero’s testimony, if
believed, established the existence of a quid pro quo
offered by Williams to Mongero at the outset of the
investigation that, if Mongero helped the police, Mon-
gero would not be arrested for drug dealing and that
Mongero’s initial identification of the defendant was pre-
cipitated solicitously. Williams’ testimony contradicted
State v. Harvey

Mongero’s testimony and was likely believed over Mon-
gero’s testimony. Had Mongero’s testimony been credited
by the jury, Mongero’s bias would have been exposed,
and the reliability of his identifications of the defendant
significantly eroded. Without the suppressed exculpa-
tory information, the defendant could not impeach Wil-
liams’ testimony regarding these two crucial aspects.
Therefore, given [that] Williams’ credibility was central
to the state’s case, the suppression of the exculpatory
information was material to the outcome of the case.”
(Footnote omitted.)
The defendant argued that “Mongero testified that
he was assured at the hospital . . . that if he cooperated
with the police, he would not be arrested for illegal drugs
and was directed at the hospital to visit Williams upon
his release. Contrarily, Williams never testified to any
such quid pro quo inducement, maintaining that neither
he nor any other police officer instructed Mongero to
come to the police department upon discharge from the
hospital—that Mongero went to the police department
purely on his own accord.
“Further, and again, Mongero testified that Williams
called him in March 2020 and asked him if what Williams
had heard from DeSantis was true: that DeSantis called
Mongero and told him that ‘they caught the guys’ and
sent Mongero the news article and Mongero agreed that
the defendant was his attacker. Mongero testified he
replied that it was all true. Contrarily, Williams testi-
fied to a nonsolicitous account of the conversation: that
he simply asked Mongero if Mongero would be able to
identify the defendant in a photo lineup and that it was
Mongero who sua sponte responded that he would, but
that he had already seen a picture of the defendant in
the news article and he was certain the defendant was
his initial attacker.
“Williams’ testimony contradicting Mongero’s claim of
the existence of a quid pro quo at the outset of the inves-
tigation and Mongero’s account of the solicitous nature
of Williams’ telephone call to Mongero that precipitated
State v. Harvey

Mongero’s initial identification of the defendant was
likely accepted by the jury over Mongero’s testimony.”
In his memorandum of law in support of his motion
for a new trial, the defendant based his argument that
Mongero’s testimony was central to the state’s case on
evidence that the defendant did not show signs of injury
following the incident involving Mongero, despite the
fact that Mongero testified that he had stabbed his assail-
ant. Also, there was forensic evidence that DNA from an
unknown source was found on the knife that contained
the defendant’s DNA. The defendant also argued that
there were multiple reasons for the jury to doubt the
veracity of Mongero’s testimony, including the undis-
puted evidence that he had a criminal history and had
entered into a cooperation agreement with the state.
On November 29, 2022, the state filed a written objec-
tion to the motion for a new trial on the ground that “the
information relating to [Williams’] disciplinary record
was not favorable evidence because it did not pertain to
veracity and the deprivation of said information was
not material.” In its memorandum of law in support
of its objection to the motion for a new trial, the state
represented that, in preparation for trial and pursuant
to Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972), it requested that the Danbury
Police Department provide it with any impeachment
evidence that should be disclosed to the defense.18 The
state represented that, although the Danbury Police
Department concluded that Williams had engaged in
improper conduct in connection with the recertifica-
tion training at issue and required him to retake sev-
eral classes, it concluded that the information about
the recertification issue did not pertain to misconduct
or bias. For this reason, the police department did not
disclose the information at issue to the state. The state
argued that the information at issue was not favorable
18
Giglio provides that, “[w]hen the reliability of a given witness may
well be determinative of guilt or innocence, nondisclosure of evidence
affecting credibility falls within [the] general rule [of disclosure under
Brady].” (Internal quotation marks omitted.) Giglio v. United States,
supra, 405 U.S. 154.
State v. Harvey

to the defendant because it did not pertain to Williams’
veracity.19 The state also argued that, even if the evidence
at issue was favorable to the defense, it was not material
because, “[c]onsidering the nature of the nondisclosed
records and Williams’ role in the stabbing investiga-
tion, the records could not reasonably be taken to put
the whole case in such a different light as to undermine
the confidence of the verdict.”
On December 19, 2022, the court held a remote hear-
ing on the motion for a new trial. On March 23, 2023,
the court issued a memorandum of decision in which it
denied the motion for a new trial. The court set forth the
factual basis for the motion, summarized the parties’
arguments, and discussed the legal principles governing
motions for a new trial based upon Brady violations.
The court then stated: “The initial question . . . becomes
whether the information relating to [Williams’] submis-
sion, under oath, of documents which suggested that
he was untruthful in his training obligations and his
subsequent disciplinary action were discoverable as of
right. There is little debate, in this court’s opinion, that
the defendant was entitled to this information. Williams’
personnel file substantiated that he had, under oath,
[sworn] to his participation and completion of manda-
tory online training. The fact that Williams later passed
the required tests, or that the chief of police opined that
his conduct was not ‘material’ is of no significance. His
conduct directly implicated issues of trustworthiness,
and the defendant was entitled to know this informa-
tion so he could challenge the truthfulness of Wiliams’
testimony before the jury. . . .
“Having concluded that the evidence was suppressed
and potentially favorable to the defense, the remaining
19
The state represented that, “[i]n a letter supplied to the state after
the filing of the defendant’s motion, the [Danbury police] chief articu-
lated that, because the conduct in question did not involve the falsifica-
tion of time or attendance records and because Williams was truthful
throughout the administrative inquiry, it was determined that it did not
need to be disclosed to the state pursuant to the state’s . . . request [for
disclosure pursuant to Giglio v. United States, supra, 405 U.S. 150].”
State v. Harvey

inquiry is whether it was material to guilt or punishment.
The test for materiality of a Brady violation requires
that there be a reasonable probability that, had the evi-
dence been disclosed to the defense, the result of the
proceeding would have been different. . . . In analyzing
a Brady claim, the court must avoid concentrating on
the suppressed evidence in isolation but [such evidence]
must be weighed and measured in the context of the
entire record. . . .
“The defendant argues that [Williams’] testimony
contradicted Mongero as to whether an agreement had
been reached that Mongero would not be arrested on
narcotics charges if he cooperated with the police. The
defendant ponders that, if Mongero’s testimony had
been credited by the jury, corroborating that a deal had
in fact been reached, his identification of the defendant
as the perpetrator of the offense might hold less weight.
Ultimately, the defendant argues that the impeachment
evidence would have discredited Williams and, in so
doing, allow the jury to believe Mongero’s biases, which
would, in turn, call into question his testimony against
the defendant. The defendant, however, cross-examined
both witnesses extensively, particularly regarding Mon-
gero’s lack of arrest for narcotics. The defense specu-
lates that the jury must have believed Williams over
Mongero, but that assertion is certainly not fact based
as the jury is free to believe all, some, or none of any
witness’ testimony. The jury is tasked with the respon-
sibility of resolving conflicts in witness’ testimony and
determinations of credibility. The jury was privy to the
cooperation agreement between Mongero and the state,
and Mongero was [extensively] cross-examined on his
motives and biases in offering testimony.
“Although the defendant asserts that Williams’ tes-
timony was fatally essential to the state’s case, this is
not borne out by the evidence presented to the jury. The
jury heard evidence that the defendant fit the descrip-
tion of a suspicious individual observed by a neighbor
at the crime scene, that the defendant’s DNA was on
State v. Harvey

the weapon recovered at the scene, which also had Mon-
gero’s DNA; the defendant’s cell phone was placed in
close proximity to the crime scene at the time of the
incident; the defendant’s cell phone was later placed in
close proximity to his home address in New York, and
the defendant was identified on multiple occasions by
Mongero. Williams was not an integral part of evidence
recovery at the scene, [performing] the DNA analysis, or
acquiring the cell tower information on the defendant’s
phone. Ultimately, there was an abundance of evidence
[on] which the jury could base its verdict. To suggest
that Williams’ credibility would have been so impaired
by the suppressed material such as to undermine the
integrity of the jury’s verdict is a gross simplification of
the evidence against the defendant. Particularly, where
the defendant extensively cross-examined Mongero on
the very issue he asserts would have been impacted, his
motivation in providing testimony for the state. The
fact that [the testimony of the witness who might have
been impeached] is corroborated by additional inculpa-
tory evidence at trial plays a weighty role in assessing
the materiality of the suppression. . . .
“Furthermore, and quite notably, in this particular
instance the defendant is not arguing that evidence of an
agreement was suppressed in violation of Brady. Instead,
the defendant’s argument is based upon impeachment
evidence attacking the credibility of a police witness
unrelated to the investigation of the trial matter itself.
The defendant bases his claim of materiality on what he
asserts to be the erosion of credibility transferred from
Williams to Mongero, arguing that, if the jury were to
disregard Williams’ credibility, they would in turn find
Mongero’s testimony that he was insulated from pros-
ecution more believable. The jury, however, was privy
to the state’s cooperation agreement with Mongero, who
was extensively cross-examined about his motivation
in providing testimony. The value of the suppressed
evidence is speculative at best and of minimal import
when viewed in [light of the] totality [of the evidence
presented at trial]. . . .
State v. Harvey

“The court finds that there is no reasonable probability
that the outcome of the defendant’s trial would have been
different had the police personnel file been disclosed. Nor
does the record support a finding that the suppression
undermined confidence in the outcome of the trial. As
such, the defendant’s motion for a new trial is denied.”
(Citations omitted.) The defendant challenges the court’s
decision on various grounds that we will address in turn.
“[O]ur standard of review of the trial court’s denial of
a motion for a new trial is limited to a determination of
whether, by such denial, the court abused its discretion.
. . . As a reviewing court considering the trial court’s
decision granting or denying a motion for a new trial, we
must be mindful of the trial judge’s superior opportunity
to assess the proceedings over which he or she has per-
sonally presided.” (Citations omitted; internal quotation
marks omitted.) State v. Roberson, 62 Conn. App. 422,
425–26, 771 A.2d 224 (2001). The defendant filed the
motion for a new trial pursuant to Practice Book § 42-53;
see footnote 17 of this opinion; which “rule of practice
is limited to trial errors and provides for the granting
of a motion for a new trial in the interests of justice for
constitutional error or other materially injurious error.”
State v. Massaro, 205 Conn. App. 687, 700, 258 A.3d
735 (2021), aff’d, 347 Conn. 200, 296 A.3d 782 (2023).
Because the defendant’s motion for a new trial was
based on an alleged Brady violation, we must evaluate
the denial of the motion for a new trial in light of the
court’s resolution of the Brady claim on which it was
based. “In Brady v. Maryland, supra, 373 U.S. 87, the
United States Supreme Court held that the suppression
by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. . . . [T]he Brady
rule applies not just to exculpatory evidence, but also to
impeachment evidence . . . which, broadly defined, is evi-
dence having the potential to alter the jury’s assessment
of the credibility of a significant prosecution witness. . .
State v. Harvey

. In order to prove a Brady violation, the defendant must
show: (1) that the prosecution suppressed evidence after
a request by the defense; (2) that the suppressed evidence
was favorable to the defense; and (3) that the evidence
was material. . . . Thus, [i]n order to obtain relief under
Brady, a defendant bears the heavy burden of satisfying
all three prongs of the aforementioned test . . . . Whether
the [defendant] was deprived of his due process rights
due to a Brady violation is a question of law, to which
we grant plenary review.” (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v.
Emmanuel C., 233 Conn. App. 156, 168–69, 338 A.3d
1177 (2025).
“The Brady rule is based on the requirement of due pro-
cess. Its purpose is not to displace the adversary system
as the primary means by which truth is uncovered, but to
ensure that a miscarriage of justice does not occur. Thus,
the prosecutor is not required to deliver his entire file to
defense counsel, but only to disclose evidence favorable
to the accused that, if suppressed, would deprive the
defendant of a fair trial . . . . In other words, [u]nder
the last Brady prong, the prejudice that the defendant
suffered as a result of the impropriety must have been
material to the case, such that the favorable evidence
could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.
. . . If . . . [a defendant] . . . fail[s] to meet his burden as
to [any] one of the three prongs of the Brady test, then
[the court] must conclude that a Brady violation has not
occurred.” (Citation omitted; internal quotation marks
omitted.) Gray v. Commissioner of Correction, 236 Conn.
App. 246, 254, 347 A.3d 270 (2025), cert. denied, 354
Conn. 909, 349 A.3d 1093 (2026).
Here, the court determined that the defendant satis-
fied the first two prongs of the Brady test in that the
information concerning Williams was suppressed by the
state and favorable to the defense. Consistent with the
defendant’s appellate claim and the state’s arguments
related thereto, the first two Brady prongs are not at
State v. Harvey

issue in this appeal. Thus, we focus our attention on
the court’s determination that the defendant failed to
satisfy Brady’s materiality prong. “[M]ateriality under
Brady presents a mixed question of law and fact subject
to plenary review, with the underlying historical facts
subject to review for clear error. . . . The test for material-
ity is whether the suppressed evidence in the context of
the entire record creates a reasonable probability that,
had the evidence been disclosed to the defense, the result
of the proceeding would have been different. . . . [T]he
mere possibility that an item of undisclosed evidence
might have helped the defense or might have affected
the outcome of the trial, however, does not establish
materiality in the constitutional sense. . . . The question
[of materiality] is not whether the defendant would more
likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence. A reasonable probability of a different result
is accordingly shown when the government’s evidentiary
suppression undermines confidence in the outcome of
the trial. . . . [W]here there is no reasonable probability
that disclosure of the exculpatory evidence would have
affected the outcome, there is no constitutional violation
under Brady. . . .
“A defendant need not demonstrate that after dis-
counting the inculpatory evidence in light of the undis-
closed evidence, there would not have been enough left
to convict. . . . One does not show a Brady violation by
demonstrating that some of the inculpatory evidence
should have been excluded, but by showing that the
favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine con-
fidence in the verdict. . . . Accordingly, the focus is not
whether, based [on] a threshold standard, the result of
the trial would have been different if the evidence had
been admitted. We instead concentrate on the overall
fairness of the trial and whether nondisclosure of the
evidence was so unfair as to undermine our confidence
in the jury’s verdict. . . . Put differently, materiality is
State v. Harvey

established if the withheld evidence is of sufficient import
or significance in relation to the original trial evidence
that it reasonably might give rise to a reasonable doubt
about the petitioner’s guilt.” (Citations omitted; internal
quotation marks omitted.) Id., 257–58.
The defendant challenges several of the underlying his-
torical facts set forth by the court. “We will not disturb
a [trial] court’s findings with respect to the underlying
historical facts [in connection with a Brady claim] . . .
unless the findings are clearly erroneous.” Peeler v. Com-
missioner of Correction, 170 Conn. App. 654, 689, 155
A.3d 772, cert. denied, 325 Conn. 901, 157 A.3d 1146
(2017). “In determining whether a finding is clearly
erroneous, it is not the role of this court to weigh the
evidence presented or to evaluate the credibility of wit-
nesses. . . . Rather, [a] finding of fact is clearly errone-
ous when there is no evidence to support it . . . 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 presump-
tion must be given in favor of the trial court’s ruling.”
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) State v. Dennis, 237 Conn. App. 649,
658–59, 352 A.3d 204, cert. denied, 354 Conn. 932,
___ A.3d ___ (2026). First, the defendant argues that
the court’s findings that “the defendant’s cell phone was
placed in close proximity to the crime scene at the time
of the incident” and that “the defendant’s cell phone
was later placed in close proximity to his home address
in New York” are clearly erroneous. According to the
defendant, “[t]he state never presented any evidence . . .
about his phone at all. Rather, it only produced evidence
that Trejo’s phone, a phone registered to a Mark Hedley,
and an ‘e-pay’ phone were making calls within a few miles
of Mongero’s [residence] at the time of the incident. . . .
There was no evidence presented that the defendant
possessed or used the e-pay phone.” (Citation omitted.)
The defendant’s argument concerning a cell phone,
described as an “e-pay” cell phone at the time of trial,
State v. Harvey

is not persuasive because the state presented evidence
from which the jury reasonably could have inferred
that the phone was associated with him.20 During their
investigation, the police searched a cell phone associated
with Trejo, which reflected that, at or near the time
of the incident at Mongero’s residence, Trejo used his
cell phone either to send or receive messages from two
other cell phones. Through their investigation, the police
determined that one of these cell phones, registered
with Verizon and using a 917 area code, was associated
with Hedley. The other cell phone was an “e-pay” cell
phone with a 646 area code. The police later determined
through the use of cellular data analysis that the three
cell phones were in the area of Mongero’s residence at
or near the time of the incident on May 23, 2018, and
thereafter the e-pay cell phone was in close proximity
to the defendant’s residence in the Bronx, New York.
For the foregoing reasons, the court’s finding was sup-
ported by the evidence and the rational inferences to be
drawn therefrom.
Second, the defendant also argues that the court’s find-
ing that “the defendant fit the description of a suspicious
individual observed by a neighbor at the crime scene”
was clearly erroneous. The evidence reflects that, at or
about the time of the incident at Mongero’s residence,
one of Mongero’s neighbors, Maria Tombline, observed
three young men walking down her street and took note
of their appearances. During her trial testimony, she
stated that she “just . . . had that feeling” that their pres-
ence was suspicious. She also stated that she observed
a Hispanic male wearing a plaid flannel shirt and jeans,
another young man who had dreadlocks with yellow tips,
and another young man who “had his hood up.” When
asked to describe the race of the latter two men, she
said they were “people of color” but was unable to recall
20
The state presented evidence that there was no available subscriber
information for this cell phone. The person or persons using the phone
prepaid for services following activation of the phone and, thus, no
financial or other type of identification verification was necessary
prior to its use.
State v. Harvey

more details than that. Another of Mongero’s neighbors,
Andrew Middlebrook, testified at trial that, at or near
the time of the incident at Mongero’s residence, he was
cooking dinner and observed three males walking up
his street. He testified that he observed “two African
American males,” one of whom had short hair and the
other of whom had longer hair that was tied back. He
testified that these two males were accompanied by a
Hispanic male. At trial, Mongero described the man who
stabbed him in his side as a black male who had “long
dreads with blond tips, average build, stocky, [with a]
strong brow.” During the trial, Mongero identified the
defendant as the person who fit this description and who
stabbed him in his bedroom. Thus, the court’s finding was
supported by the evidence and the rational inferences to
be drawn therefrom.
Third, the defendant argues that, “[w]hile the court
emphasized that Mongero identified the defendant mul-
tiple times, he only did so twice—once upon seeing the
defendant’s photo in the newspaper and then later at
trial. Given its finding that his initial identification
came from suggestive circumstances, it is illogical to
construe that as strong evidence against the defendant.”
The defendant is unable to demonstrate that these find-
ings are clearly erroneous. The evidence reflects that
Mongero identified the defendant at least twice, once
after seeing his photograph in the newspaper and, later,
during the trial itself. Thus, the evidence supports the
court’s finding that Mongero identified the defendant
“multiple times.” The defendant’s suggestion that the
initial identification should be disregarded because it
“came from suggestive circumstances” invites us to dis-
regard the evidence presented at trial. As we discussed
in part III of this opinion, the trial court found, and we
agreed, that the identification was reliable and admitted
without limitation as to its use by the jury. See Gagliano
v. Advanced Specialty Care, P.C., 329 Conn. 745, 759,
189 A.3d 587 (2018) (“[a]n exhibit offered and received
as a full exhibit is in the case for all purposes . . . and is
usable as proof to the extent of the rational persuasive
State v. Harvey

power it may have” (citation omitted; internal quotation
marks omitted)). In light of the fact that a materiality
analysis takes into account the entire record of the trial,
the defendant’s argument that it was clearly erroneous
for the court to have relied on the out-of-court identi-
fication in evaluating the materiality of the suppressed
Brady evidence is not persuasive.21
Separate from his argument that the foregoing find-
ings were clearly erroneous, the defendant argues that
the court’s analysis of materiality was flawed because
the court “misunderstood” his argument that, if the jury
“knew that Williams had lied under oath to his superi-
ors about completing his recertification training, they
could have disbelieved that Mongero suddenly decided
to cooperate and came to the police department on his
own accord the minute he left the hospital. Instead, they
might have concluded that he did so because he had been
told at the hospital [that] he would not be charged for
the drugs [the police found at his residence] if he cooper-
ated. They could also have doubted Williams’ testimony
that he simply contacted Mongero to do a photo array.
Rather, they could have concluded that Mongero agreed
with Williams when Williams contacted him about seeing
the newspaper [article] because he knew from the start
that he would not be investigated [for his possession of
illegal drugs] only if he cooperated, and that once the
case resurfaced years later, he felt compelled to state that
the defendant was his attacker.” (Emphasis in original.)
Lastly, the defendant argues that the court’s analysis of
21
The defendant also challenges the propriety of the court having
found that there was evidence “that the defendant’s DNA was on the
weapon recovered at the scene which also had Mongero’s DNA . . . .”
The basis for the defendant’s challenge is unclear. He does not dispute
“that [his] DNA was found in a mixture on the weapon used [to stab]
Mongero” but, instead, argues that this was “not strong evidence given
that there were several unidentified contributors on the weapon and
the DNA analyst did not know how it got there.” The defendant has not
demonstrated that the court’s finding was not supported by the evidence
and, thus, clearly erroneous. The defendant made identity an issue in
the case, and the evidence that his DNA was present on the knife used
to stab Mongero, while not dispositive of his guilt, was nonetheless
strong evidence that supported the verdict.
State v. Harvey

materiality was flawed because “it does not matter that
the jury was aware of the cooperation agreement between
Mongero and the state. The issue was whether Mongero
was incentivized to identify the defendant in the first
place, and not that there was a cooperation agreement
entered into years later.”
As stated previously, we review the trial court’s find-
ings of historical facts in connection with the defendant’s
Brady claim under the clearly erroneous standard of
review. However, we undertake a plenary examination
of whether, in light of the historical facts found, the
suppressed evidence was material under Brady, and
we do not defer to the court’s determination that the
suppressed evidence was not material. Nonetheless, we
readily reject the defendant’s argument that the court’s
legal analysis of the Brady issue was flawed because the
court misunderstood the nuances of that argument. The
defendant thoroughly set forth his arguments concern-
ing materiality before the trial court. Contrary to the
defendant’s claim, the court’s memorandum of decision
reflects that the court squarely considered the defen-
dant’s theory of materiality, specifically, (1) that the
suppressed evidence would have undermined Williams’
testimony in the areas in which it conflicted with that of
Mongero, (2) this ultimately would have led the jury to
question whether Mongero’s identification of him was
accurate, and (3) the jury would have found that Mon-
gero’s identification of him was inaccurate because it was
the result of his desire to assist the police and thereby
avoid prosecution on charges related to his possession
of illegal drugs.
In our plenary review of the entire record, we are not
persuaded that the suppressed evidence concerning Wil-
liams would have cast the case in a different light or that
the absence of the evidence deprived the defendant of
a fair trial. The suppressed evidence was favorable to
the defendant in that it tended to undermine Williams’
credibility generally, but it does not follow that, if the
evidence had been disclosed, the jury would have been
likely to have disbelieved Williams’ testimony in its
entirety or would have concluded that Mongero did not
State v. Harvey

testify credibly with respect to his identification of the
defendant. The defendant squarely placed before the
jury the issue of whether Mongero’s identification of
him was motivated by his own self-interest, specifically,
whether his cooperation with the state was the result
of his desire to avoid prosecution for his possession of
illegal drugs. The jury was well aware of the fact that
Mongero had entered into a cooperation agreement with
the state. Furthermore, the jury heard ample testimony
concerning the circumstances under which Mongero
cooperated with the police, informed Williams about
the newspaper article, and provided Williams with a
statement concerning his out-of-court identification of
the defendant.
It is significant in our analysis that the suppressed evi-
dence was factually unrelated to any aspect of Williams’
investigation of the events underlying the defendant’s
conviction, let alone Mongero’s out-of-court identifica-
tion of the defendant. Although the suppressed evidence
was favorable to the defendant, this does not mean that
it was so compelling that, if it had been admitted into
evidence, the jury likely would have disbelieved Williams’
testimony in its entirety or, as the defendant suggests,
would have disbelieved Williams’ testimony concerning
the circumstances surrounding Mongero’s out-of-court
identification of him. Furthermore, even if we were to
agree that the evidence would have caused the jury to
disbelieve Williams’ testimony in its entirety, this does
not mean that the jury likely would have disbelieved
Mongero, who fully explained his reasons for cooper-
ating with the police and providing the police with an
identification of the defendant that, according to him,
was honestly made.
Finally, even if the jury believed that Mongero’s iden-
tification of the defendant was biased by his self-interest,
the state presented other evidence from which it reason-
ably could have logically inferred that the defendant
was the perpetrator of the crimes of which he was found
guilty. The testimony of the defendant’s neighbors, the
results of the DNA testing of the knife, and the cell phone
records corroborated a finding that Mongero accurately
State v. Harvey

had identified the defendant. See State v. Bryan, 193
Conn. App. 285, 318, 219 A.3d 477 (rejecting claim of
materiality based on state’s failure to disclose internal
affairs records relating to police sergeant who was called
as witness at trial because, “[e]ven if the defendant could
have used the records to impeach [the witness’] credibil-
ity, there was overwhelming evidence adduced at trial
supporting the defendant’s conviction”), cert. denied,
334 Conn. 906, 220 A.3d 37 (2019); Elsey v. Commis-
sioner of Correction, 126 Conn. App. 144, 160, 10 A.3d
578 (“[T]his was not a case in which the prosecution’s
case hinge[d] entirely on the testimony of [the witness
in question] . . . . Rather . . . there was ample evidence to
support the [defendant’s] conviction. . . . Therefore, we
cannot say that the fact that the state did not disclose the
evidence . . . undermines our confidence in the jury’s ver-
dict . . . .” (Citations omitted; internal quotation marks
omitted.)), cert. denied, 300 Conn. 922, 14 A.3d 1007
(2011). Thus, after taking into consideration the nature
of the suppressed evidence, including Williams’ role in
the investigation of the crimes, we are not persuaded
that the suppressed evidence was likely to have cast the
whole case in such a different light as to undermine the
confidence of the verdict.
For the foregoing reasons, we are not persuaded that
it was reasonably probable that the disclosure of the
exculpatory evidence would have affected the outcome
of the trial. Because a Brady violation did not occur, the
court properly exercised its discretion in denying the
motion for a new trial.
The judgment as to the conviction of assault in the
second degree as an accessory is vacated; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.