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*********************************************** 
STATE OF CONNECTICUT v.

TYRIECE S. FULLER

(AC 38166)

Sheldon, Prescott and Pellegrino, Js.

Syllabus

Convicted of the crimes of conspiracy to steal a firearm, conspiracy to

commit larceny in the fourth degree, illegal manufacture, distribution,

sale, prescription or administration of narcotics by a person who is not

drug-dependent, illegal manufacture, distribution, sale, prescription or

administration of narcotics by a person who is not drug-dependent

within 1500 feet of a public elementary school, conspiracy to commit

the illegal manufacture, distribution, sale, prescription or administration

of narcotics by a person who is not drug-dependent and criminal possession of a firearm, the defendant appealed to this court. He claimed that,

in denying his requests to personally possess a copy of certain discovery

items disclosed by the state pursuant to the applicable rules of practice

(§§ 40-10 and 40-13), the trial court violated his constitutional rights to

counsel, a fair trial and due process, and that the court abused its

discretion and committed structural error. Held:

1. The defendant’s claim that the trial court violated his constitutional rights

in denying his requests to personally possess a copy of the discovery

items was not reviewable, the defendant having failed to properly preserve his claim for review; the record indicated that the defendant,

through counsel, never framed his discovery requests as assertions that

his constitutional rights to due process or the effective assistance of

counsel entitled him to personally possess the discovery documents in

question, and the unpreserved claim was not of constitutional magnitude

so as to warrant review under State v. Golding (213 Conn. 233), as a

criminal defendant has no general constitutional right to discovery and

a criminal defendant’s procedural right to the disclosure of discovery

pursuant to § 40-13 does not give rise in and of itself to a constitutional right.

2. The trial court did not abuse its discretion in denying the defendant’s

discovery requests to personally possess a copy of the discovery items

disclosed by the state; the record demonstrated that the defendant

personally reviewed the state’s disclosure in the presence of his attorneys or their agents on multiple occasions, and the defendant did not

provide a compelling reason for his need to personally possess the

discovery materials, other than his repeated claims that the state’s evidence was either being fabricated or withheld.

Argued September 22—officially released December 12, 2017

Procedural History

Substitute information charging the defendant with

the crimes of conspiracy to steal a firearm, conspiracy

to commit larceny in the fourth degree, conspiracy to

commit burglary in the third degree, illegal manufacture, distribution, sale, prescription or administration

of narcotics by a person who is not drug-dependent,

illegal manufacture, distribution, sale, prescription or

administration of narcotics by a person who is not drugdependent within 1500 feet of a public elementary

school, conspiracy to commit the illegal manufacture,

distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent and criminal possession of a firearm, brought to the Superior

Court in the judicial district of Fairfield; thereafter, the

court, Devlin, J., denied the defendant’s motion for
disclosure; subsequently, the court, Blawie, J., denied

the defendant’s motion for disclosure and production;

thereafter, the charges of conspiracy to steal a firearm,

conspiracy to commit larceny in the fourth degree, conspiracy to commit burglary in the third degree, illegal

manufacture, distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent, illegal manufacture, distribution, sale,

prescription or administration of narcotics by a person

who is not drug-dependent within 1500 feet of a public

elementary school and conspiracy to commit the illegal

manufacture, distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent were tried to the jury before Blawie, J.;

subsequently, the court, Blawie, J., granted the defendant’s motion for judgment of acquittal with respect to

the charge of conspiracy to commit burglary in the

third degree; verdict of guilty on the remaining charges;

subsequently, the charge of criminal possession of a

firearm was tried to the court, Blawie, J., judgment

of guilty, from which the defendant appealed to this

court. Affirmed.

Lisa J. Steele, assigned counsel, for the appellant

(defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were John Smriga, state’s

attorney, C. Robert Satti, senior assistant state’s attorney, and Ann Lawlor, senior assistant state’s attorney,

for the appellee (state).
Opinion

PELLEGRINO, J. The defendant, Tyriece S. Fuller,

appeals from the judgment of conviction rendered after

a jury trial, of conspiracy to steal a firearm in violation

of General Statutes §§ 53a-48 and 53a-212; conspiracy

to commit larceny in the fourth degree in violation of

General Statutes §§ 53a-48 and 53a-125; illegal manufacture, distribution, sale, prescription or administration

of narcotics by a person who is not drug-dependent in

violation of General Statues §§ 53a-8 and 21a-278 (b);

illegal manufacture, distribution, sale, prescription or

administration of narcotics by a person who is not drugdependent within 1500 feet of a public elementary

school in violation of General Statutes §§ 21a-278 (b)

and 21a-278a (b); and conspiracy to commit the illegal

manufacture, distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48, 21a-277

(a), 21a-278 (b) and 21a-279 (a).1

The defendant claims on appeal that the trial court,

in denying his requests to personally possess a copy of

the discovery items disclosed by the state pursuant to

Practice Book §§ 40-102 and 40-13A:3

(1) violated his

federal and state constitutional rights to counsel,4 a fair

trial and due process; (2) abused its discretion; and (3)

committed structural error. For the reasons set forth

herein, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims. The

defendant was arrested following an extensive investigation by the Statewide Urban Violence Cooperative

Crime Control Task Force (task force), which targeted

the sale of illegal firearms and narcotics in the city of

Bridgeport in 2012. The defendant was implicated in

the investigation after he was involved in the sale of

stolen guns and oxycodone pills to confidential informants in two separate controlled purchases in June and

July, 2012. On May 22, 2013, the state filed an information charging the defendant with multiple offenses.

Attorney Frederic Ury was appointed as the defendant’s

counsel on June 24, 2013, and represented the defendant

throughout the majority of his pretrial proceedings. On

February 19, 2014, Ury moved to withdraw his appearance, citing a breakdown in the attorney-client relationship. On February 26, 2014, the court granted Ury’s

motion to withdraw. On March 3, 2014, Attorney Miles

Gerety filed an appearance on behalf of the defendant.

A six-day jury trial commenced on July 15, 2014. Several

members of the task force, and an alleged coconspirator, Serafettin Senel, testified. The defendant did not

testify. On July 23, 2014, the defendant was found guilty

on the counts tried to the jury and the count tried to

the court.

On August 28, 2014, the defendant filed a handwritten
motion to dismiss Gerety as his counsel. In his motion,

the defendant alleged that Gerety assaulted him,

coerced him into not presenting evidence or testifying

at trial, and conspired with various other individuals

to convict him.5 On October 17, 2014, the court granted

Gerety’s oral motion to withdraw. On October 21, 2014,

Attorney Donald Cretella filed an appearance to represent the defendant with respect to sentencing. On January 26, 2015, the court sentenced the defendant to a

total effective sentence of eight years of incarceration,

followed by five years of special parole. This appeal

followed. Additional facts and procedural history will

be set forth as necessary.

I

The defendant’s first claim on appeal is that the trial

court violated his federal and state constitutional rights

in denying his requests to personally possess a copy of

the discovery items disclosed by the state pursuant to

Practice Book § 40-10. The defendant contends that

§ 40-10 ‘‘creates a presumption’’ that he is not permitted

to possess a copy of the state’s disclosure in violation

of his constitutional rights. The defendant asserts that

his claim was adequately preserved by his attorneys’

three ‘‘motions to provide redacted reports to [him],

which were denied by the trial court . . . .’’ Alternatively, the defendant seeks review pursuant to State v.

Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified

by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188

(2015). The state argues that the defendant is not entitled to review of this claim because it is unpreserved

and not constitutional in nature. We conclude that the

defendant’s claim was not properly preserved for our

review.

The following additional facts are necessary for our

resolution of this claim. On July 10, 2013, Ury orally

sought permission from the court to provide the defendant with a redacted copy of a police report. The court,

Devlin, J., denied the motion. On May 28, 2014, Gerety

asked for the court’s permission to provide the defendant with a redacted copy of the state’s disclosure. The

court, Blawie, J., deferred ruling on the motion until

counsel had an opportunity to meet off the record to

try and resolve the disclosure issue. On June 4, 2014,

Gerety filed a motion for disclosure and production

requesting that the state permit defense counsel to provide a copy of the state’s disclosure to the defendant

pursuant to Practice Book § 40-10. On June 5, 2014,

after conducting a hearing to determine ‘‘whether or

not the defendant should be entitled to have his own

copies of the state’s disclosure materials,’’ Judge Blawie

denied the defendant’s motion.

The record indicates that the defendant, through

counsel, never framed his requests as a constitutional

issue.6 None of the requests contained any assertion

that the defendant’s constitutional rights to due process
or the effective assistance of counsel entitled him to

personally possess discovery documents. Therefore,

appellate review of his unpreserved claim is subject to

State v. Golding, supra, 213 Conn. 239–40. ‘‘Under this

standard, [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 constitutional 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 constitutional violation beyond a reasonable

doubt.’’ (Emphasis in original; internal quotation marks

omitted.) State v. Biggs, 176 Conn. App. 687, 705–706,

A.3d (2017).

We conclude that this claim is not ‘‘of constitutional

magnitude alleging the violation of a fundamental right

. . . .’’ State v. Golding, supra, 213 Conn. 239. A criminal defendant has no general constitutional right to

discovery. See Weatherford v. Bursey, 429 U.S. 545, 559,

97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). This court has

previously held that a criminal defendant’s procedural

right to the disclosure of discovery pursuant to Practice

Book § 40-13 ‘‘does not give rise in and of itself to a

constitutional right.’’ State v. Sewell, 95 Conn. App. 815,

822, 898 A.2d 828, cert. denied, 280 Conn. 905, 907 A.2d

94 (2006); see also State v. Coriano, 12 Conn. App. 196,

200, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d

77 (1987) (‘‘The right under the rules of practice to

statements of witnesses . . . is not a right of constitutional magnitude.’’). Accordingly, this argument fails

under the second prong of Golding. We therefore

decline to review the merits of the defendant’s constitutional claims.

II

The defendant’s second claim on appeal is that the

trial court abused its discretion in denying his requests

to personally possess a copy of the discovery items

disclosed by the state pursuant to Practice Book § 40-

10. We disagree.

The following additional facts are necessary for our

resolution of this claim. In denying Ury’s oral motion

to give the defendant a redacted copy of the police

report, Judge Devlin stated, ‘‘in other cases where I’ve

authorized police reports to go into the correctional

center, what they’re really used for is to find out who the

informants are, who the witnesses are, and sometimes

those people are given a hard time. So, I don’t permit

that. [Ury] will go over the report with you, so you’re

fully informed about what the accusations are against

you, what the police evidence is against you, but I’m

not going to permit the actual physical copy of the

report into the jail. I just don’t do that because we have
had bad situations come out of that.’’

This issue was readdressed during a June 5, 2014

hearing on the defendant’s motion for disclosure and

production. Gerety stated to the court that the motion

was ‘‘driven by the defendant.’’ Gerety also acknowledged that the decision to permit the defendant to possess discovery under Practice Book § 40-10 was ‘‘largely

[in] the court’s discretion.’’ Gerety represented to the

court that he had visited the defendant in prison on

‘‘numerous occasions.’’7 During these visits, the defendant had the opportunity to read most of the disclosure

but claimed that he had not finished reading it. Gerety

also brought his laptop and reviewed a series of police

videos with the defendant. Gerety stated that they

‘‘spent hours going over line by line . . . writing down

the words that were said.’’ The state objected to the

defendant’s motion, citing its interest in preventing disclosed materials from circulating in the jails. The state

also argued that this motion was merely an attempt

to circumvent prior rulings made by the court, which

denied the defendant’s motion to remove counsel and

to represent himself. The state further contended that

the defendant would suffer no prejudice because he

‘‘had full access to . . . the disclosure materials’’

through his attorney. Further, the defendant admitted

that he already possessed many of the documents

through a Freedom of Information Act request. Judge

Blawie denied the defendant’s motion, finding that there

had not been a sufficient change in circumstances to

overturn Judge Devlin’s prior ruling on the same issue.

Judge Blawie, however, accepted an alternative proposed by Gerety, and the defendant was given the

remainder of the day to review the state’s disclosure

in the courthouse.

We review the court’s granting or denial of a discovery request for an abuse of discretion. See In re Jason

M., 140 Conn. App. 708, 737, 59 A.3d 902, cert. denied,

308 Conn. 931, 64 A.3d 330, cert. denied sub nom, Charline P. v. Connecticut Dept. of Children & Families,

U.S. , 134 S. Ct. 701, 187 L. Ed. 2d 564 (2013).

‘‘Our role as an appellate court is not to substitute our

judgment for that of a trial court that has chosen one

of many reasonable alternatives.’’ (Internal quotation

marks omitted.) Id., 734. Therefore, ‘‘[i]n determining

whether there has been an abuse of discretion, every

reasonable presumption should be given in favor of the

correctness of the court’s ruling. . . . Reversal is

required only where an abuse of discretion is manifest

or where injustice appears to have been done.’’ State

v. Megos, 176 Conn. App. 133, 148, 170 A.3d 120 (2017).

The record demonstrates that the defendant personally reviewed the state’s disclosure in the presence of

his attorneys or their agents on multiple occasions. The

defendant did not provide a compelling reason for his

need to personally possess discovery materials, other
than his repeated claims that the state’s evidence was

either being fabricated or withheld. We therefore conclude that the court did not abuse its discretion in

denying the defendant’s requests.8

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also was convicted by the court of one count of criminal

possession of a firearm in violation of General Statutes § 53a-217 (a) (1).

In addition, the defendant was charged with conspiracy to commit burglary

in the third degree in violation of General Statutes §§ 53a-48 and 53a-103;

however, prior to the close of evidence, the court granted the defendant’s

motion for judgment of acquittal with respect to that charge.

2 Practice Book § 40-10 (a) provides: ‘‘Any materials furnished to counsel

pursuant to this chapter, including statements, reports and affidavits disclosed pursuant to Section 40-13A, shall be used only for the purposes of

conducting such counsel’s side of the case or for the performance of his

or her official duties, and shall be subject to such other terms and conditions

as the judicial authority may provide. Without the prior approval of the

prosecuting authority or the court, defense counsel and his or her agents

shall not provide copies of materials disclosed pursuant to Section 40-13A

to any person except to persons employed by defense counsel in connection

with the investigation or defense of the case.’’

3 Practice Book § 40-13A provides: ‘‘Upon written request by a defendant

and without requiring any order of the judicial authority, the prosecuting

authority shall, no later than forty-five days from receiving the request,

provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents,

including state and local law enforcement officers, which statements, reports

and affidavits were prepared concerning the offense charged, subject to the

provision of Sections 40-10 and 40-40 et seq.’’

4 The defendant claims that Practice Book § 40-10 ‘‘compromised [his]

relationship[s] with his assigned counsel’’ because they could not provide

him with a copy of the state’s disclosure, which prevented him from assisting

in his own defense.

5 The defendant’s claims were never substantiated.

6 The defendant was represented by appointed counsel for all relevant

portions of the underlying criminal matter. We note that on numerous occasions, the defendant, while represented by Ury, Gerety and Cretella, and

against their advice, filed numerous handwritten motions and spoke out in

court on his own behalf. Some of these motions and in-court statements

contained allegations of constitutional violations. Furthermore, on June 10,

2014, the defendant wrote to the court indicating that he intended to act

as cocounsel during his trial proceedings. The court correctly held that the

defendant could not file his own motions or act as cocounsel. Our state does

not recognize a defendant’s constitutional right to hybrid representation.

See State v. Gethers, 197 Conn. 369, 384 n.17, 386–94, 497 A.2d 408 (1985);

see also State v. Flanagan, 293 Conn. 406, 418, 978 A.2d 64 (2009) (‘‘The right

to counsel and the right to self-representation present mutually exclusive

alternatives. A criminal defendant has a constitutionally protected interest

in each, but since the two rights cannot be exercised simultaneously, a

defendant must choose between them.’’ [Internal quotation marks omitted.]).

Therefore, we will not consider the defendant’s motions and in-court statements for purposes of deciding whether his claim was properly preserved.

7 Gerety also represented to the court that Ury had his investigator go

over everything in his file with the defendant.

8

In light of our conclusion that the court did not improperly prevent the

defendant from personally possessing discovery materials, we need not

reach the defendant’s claim that any error was structural in nature.