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STATE OF CONNECTICUT v. GILBERTO O.

MARRERO-ALEJANDRO

(SC 19559)

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

Argued December 13, 2016—officially released March 14, 2017

James B. Streeto, senior assistant public defender,

for the appellant (defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Brian Preleski, state’s attorney, and John H. Malone, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

PER CURIAM. Following a jury trial, the defendant,

Gilberto O. Marrero-Alejandro, was convicted of murder in violation of General Statutes (Rev. to 2009) § 53a54a in connection with a shooting in Bristol in 2010.

He was sentenced to a term of sixty years imprisonment.

The defendant appealed from the judgment of the trial

court to the Appellate Court, claiming, among other

things, that the trial court improperly had failed to suppress certain DNA evidence obtained from a buccal

swab of the defendant because the swab was taken after

he had invoked his right to counsel. State v. MarreroAlejandro, 159 Conn. App. 376, 396, 122 A.3d 272 (2015).

The Appellate Court affirmed the judgment of the trial

court, holding, inter alia, that the defendant’s claim was

unreviewable because (1) it was not preserved at trial,

and (2) it failed to satisfy the second prong of State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).

State v. Marrero-Alejandro, supra, 397–98. In determining that the claim was not of constitutional magnitude

as required for Golding review, the Appellate Court

reasoned that, because the buccal swab was not testimonial evidence, neither the fifth amendment to the

federal constitution nor article first, § 8, ofthe Connecticut constitution was implicated as those provisions

apply only to testimonial evidence. Id.

Thereafter, this court granted the defendant’s petition

for certification limited to the following issue: ‘‘Did the

Appellate Court properly uphold the trial court’s denial

of the defendant’s motion to suppress DNA evidence

obtained from a buccal swab taken after he invoked

his right to counsel?’’ State v. Marrero-Alejandro, 319

Conn. 934, 125 A.3d 207 (2015). Ourreview of the record

makes it apparent that this certified question does not

reflect a correct statement of the issue before this court.

The Appellate Court’s initial conclusion was that a challenge to the admission of this evidence was unpreserved

because defense counsel had informed the trial court

that his motion to suppress was not directed at the

buccal swab. State v. Marrero-Alejandro, supra, 159

Conn. App. 397. The defendant does not challenge that

conclusion in his certified appeal. Therefore, we have

reformulated the certified question as follows: Did the

Appellate Court properly conclude that the defendant’s

unpreserved challenge to the trial court’s admission of

the buccal swap did not present a question of constitutional magnitude? See State v. Ouellette, 295 Conn. 173,

184, 989 A.2d 1048 (2010) (reformulating certified question to conform to issue actually presented and decided

in appeal); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191, 884 A.2d 981 (2005)

(same).

After examining the entire record on appeal and considering the briefs and oral arguments of the parties,

we have determined that the appeal in this case should
be dismissed on the ground that certification was

improvidently granted.

The appeal is dismissed.