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*********************************************** 
DANIEL GREER v. STATE OF CONNECTICUT

(AC 46055)

Cradle, Westbrook and DiPentima, Js.

Syllabus

The petitioner, who had previously been convicted of four counts of the

crime of risk of injury to a child, sought a new trial on the basis of

allegedly newly discovered evidence that, if credited by a jury, would

support a finding that he was innocent of the charges against him. The

petitioner was a rabbi, dean and teacher at a private, Orthodox Jewish

school when he sexually abused the victim, E, a student at the school,

on various dates in 2002 and 2003, when E was fourteen and fifteen

years old. The purported new evidence came to light as a result of

testimony given by H, a rabbi and an assistant dean at the school when

E attended, during a deposition in a federal civil lawsuit that E had

brought against the petitioner. H testified in his deposition that he had

had a sexual relationship with the petitioner that started when H himself

was a student at the school. H also testified that he was involved in a

sexual relationship with the petitioner at the same time that the petitioner was abusing E. The petitioner argued that H’s testimony at a new

trial would establish with certainty that any sexual misconduct by the

petitioner toward E could not have begun until after E’s sixteenth birthday. It was an essential element of the crime for which the petitioner

had been convicted, risk of injury to a child under the applicable statute

(§ 53-21 (a) (2)), that E had been under the age of sixteen at the time

of the petitioner’s sexual misconduct. The petitioner attached to his

petition for a new trial an affidavit sworn by H that stated, to H’s

knowledge, no acts of misconduct by the petitioner toward E occurred

prior to E’s sixteenth birthday. At the trial on the petition, H testified,

inter alia, that E had called him sometime during the winter of 2020 to

2021 to ask if he had been ‘‘really under sixteen at the time.’’ The court

denied the petition for a new trial and, in its memorandum of decision,

noted that the petitioner’s defense strategy had changed since his criminal trial, at which his primary defense had been to attack E’s credibility

and, by implication, the veracity of his allegations of sexual abuse. The

court noted that the petitioner now conceded that some of the alleged

sexual acts with E had occurred but only after E had turned sixteen

years old. The court stated that H had admitted in his testimony at

trial that he had not been present during any sexual acts between the

petitioner and E. Held that the trial court did not abuse its discretion

in determining that the petitioner’s purported new evidence, which consisted wholly of H’s affidavit and testimony, would not, if introduced

at a new trial, likely result in a different outcome, and, accordingly,

properly denied the petition for a new trial: contrary to the petitioner’s

claim, the court gave due consideration to H’s testimony regarding E’s

statement to him because the court specifically addressed that aspect

of the new evidence in its memorandum of decision and concluded that

the evidence would have done little to undermine the clear evidence in

the criminal trial that E was indeed under the age of sixteen when he

was sexually assaulted by the petitioner, and the court did not, as

suggested by the petitioner, fail to recognize the significance of E’s

posttrial uncertainty as to how old he was when the sexual assault

started, rather, the court simply was unconvinced that a jury hearing

the evidence would have reached a different conclusion regarding the

petitioner’s guilt in light of the totality of the evidence presented, and

the court’s overall finding that H’s testimony lacked credibility, and thus

was unlikely to be credited by a jury, applied equally to his testimony

regarding the alleged new statement by E; moreover, E’s purported

statement to H was vague, as E never affirmatively stated that he was

sixteen years old or older when the petitioner first abused him, and, at

best, his statement indicated possible confusion or doubt on E’s part,

but it certainly did not amount to a retraction of his trial testimony that

helped to establish a timeline from which the jury reasonably could

have found that his sexual abuse by the defendant started prior to E
turning sixteen years old, and the only evidence before the court regarding the exact wording and context of E’s purported posttrial statement

to H was H’s testimony, which the petitioner did not present any evidence

to corroborate; furthermore, it was axiomatic that this court, in

reviewing a trial court’s decision on a petition for a new trial based

upon newly discovered evidence could not substitute its own assessment

as to the proper weight, if any, to be given to any piece of evidence

offered or to revisit a trial court’s assessment regarding the credibility

of a witness, and the trial court provided a number of reasons why H

was not a credible witness, including that H admitted that he had evaded

service of process in both the federal civil action and the criminal trial,

further weakening the persuasiveness of H’s testimony and making it

less likely that a jury would find his testimony credible.

Argued November 15, 2023—officially released February 27, 2024

Procedural History

Petition for a new trial following the petitioner’s conviction of four counts of the crime of risk of injury to

a child, brought to the Superior Court in the judicial

district of New Haven, where the matter was tried to the

court, Hon. Jon C. Blue, judge trial referee; judgment

denying the petition for a new trial, from which the

petitioner, on the granting of certification, appealed to

this court. Affirmed.

David T. Grudberg, for the appellant (petitioner).

Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr.,

state’s attorney, and Seth R. Garbarsky and Craig P.

Nowak, supervisory assistant state’s attorneys, for the

appellee (respondent).
Opinion

WESTBROOK, J. The petitioner, Daniel Greer, appeals

following the granting of his petition for certification

to appeal from the judgment of the trial court denying

his petition for a new trial based on newly discovered

evidence. On appeal, the petitioner claims that the court

improperly concluded that the proffered new evidence

likely would not lead to a different result at a new trial

because the court (1) failed to give sufficient weight to

an alleged posttrial statement by the victim that the

petitioner asserts raises doubt regarding an essential

element of the crimes underlying his conviction, and

(2) erroneously determined that, even if a new trial

was granted, it was unlikely that the defense would

introduce the new evidence because it was highly prejudicial to the petitioner and, thus, would undermine,

rather than aid, his defense. For the reasons that follow,

we are not persuaded that the court abused its discretion by denying the petition for a new trial. Accordingly,

we affirm the judgment of the court.

This court, in its decision affirming the petitioner’s

judgment of conviction on direct appeal, set forth the

following relevant facts and procedural history underlying the petitioner’s criminal case. See State v. Greer,

213 Conn. App. 757, 759–64, 279 A.3d 268, cert. denied,

345 Conn. 916, 284 A.3d 299 (2022), cert. denied,

U.S. , 143 S. Ct. 1061, 215 L. Ed. 2d 282 (2023). ‘‘The

[petitioner], who is a rabbi, founded Yeshiva of New

Haven, Inc. (yeshiva), a private, Orthodox Jewish

school, and served as a dean, rabbi, and teacher at the

yeshiva. The victim, E,1 attended the yeshiva for high

school, beginning his freshman year in August or September, 2001, when he was thirteen years old. E’s birthday is in October, and he turned fourteen years old

during his freshman year. . . .

‘‘In 2002, when he was fourteen years old, E returned

to the yeshiva for his sophomore year. At some point

during the beginning of the school year, the [petitioner]

told E to meet him at an apartment adjacent to the

school, and E complied. At the apartment, the [petitioner] offered E [snacks] and an alcoholic drink . . . .

They proceeded to drink and talk about E’s family and

his future, and E began to get emotional and his head felt

‘fuzzy . . . .’ At some point, the [petitioner] touched

E’s thigh or crotch area and attempted to kiss him on

the lips. When E pulled away and asked the [petitioner]

what he was doing, the [petitioner] said that ‘[i]t wasn’t

a big deal and that this is what he does to his kids.’

Nothing further transpired, and E returned to his dormitory.

‘‘After the initial incident at the apartment, E and

the [petitioner] met at least once a week during his

sophomore year at various locations—often in New

Haven or at a motel in Branford—and engaged in oral
or anal sex. During these encounters, the [petitioner]

and E often would consume alcohol. E acknowledged

that ‘the encounters meld together’ but was ‘very sure’

that he and the [petitioner] engaged in anal and oral

sex during his sophomore year, during which time he

was fourteen and fifteen years old. He testified that,

during that period, he and the [petitioner] frequently

performed oral sex on each other, that he performed

anal sex on the [petitioner] ‘many’ times, and that, when

the [petitioner] attempted to perform anal sex on E, E

forced him to stop because it was too painful. After

these encounters, E would feel ‘shame, guilt, [and] confusion.’ At the yeshiva, the [petitioner] gave E preferential treatment and would not yell at him as he regularly

did with other students. When E attempted to end the

sexual relationship, the [petitioner] stopped giving him

preferential treatment and became ‘nasty’ instead of

‘nice and charming . . . .’ The [petitioner] continued

to engage in sexual acts with E after he turned sixteen

years old in October, 2003.

‘‘After graduating in 2005, E went to an Orthodox

yeshiva in Israel to continue his Jewish studies and met

S, his future wife . . . . In 2006, E told S that the [petitioner] had molested him during high school, but he

did not provide any details about the abuse. In the

summer of 2006, E returned to Connecticut and met

the [petitioner] at the Branford motel, where they had

their last sexual encounter.

‘‘In December, 2007, E and S were married, and the

[petitioner] was one of the witnesses at the ceremony,

which is a position of honor. E explained that he gave

the [petitioner] this honor because he respected the

[petitioner] and ‘still felt part of the New Haven community . . . .’ For several years following their marriage,

E and S would travel to New Haven for Jewish holidays,

where they would share meals with members of the

yeshiva community, including the [petitioner]. When E

and S had a son in June, 2010, E asked the [petitioner]

to hold the baby during the circumcision, which is also

a position of honor.

‘‘In 2013, E and S bought a house in New Jersey, and

E found a rabbi in that community. Around that time,

E stopped traveling to New Haven and communicating

with the [petitioner]. At some point before 2016, E disclosed the abuse to his therapist and two family friends,

one of whom was working at the yeshiva. In May, 2016,

E filed a civil action in federal court against the [petitioner] seeking money damages stemming from the sexual abuse.2

In August, 2016, while the civil action was

pending, E reported the sexual abuse to the New Haven

Police Department.

‘‘On July 26, 2017, the [petitioner] was arrested and

charged with four counts of sexual assault in the second

degree under General Statutes § 53a-71 (a) (1) and four

counts of risk of injury to a child under [General Statutes]
§ 53-21 (a) (2). In the operative long form information,

the state alleged that the charged conduct occurred when

E was fourteen and fifteen years old, ‘at the city of New

Haven on divers dates between 2002 up to October 27,

2003’ . . . . [T]he sexual assault and risk of injury

charges were premised on the same conduct—anal

intercourse and fellatio.

‘‘The case proceeded to a jury trial, and, at the close

of evidence, defense counsel moved for a judgment of

acquittal as to the charges of sexual assault in the second degree on the ground that the prosecution was

barred by the statute of limitations set forth in § 54-

193a because E had not notified a police officer or

state’s attorney within five years after the commission

of the offense. After a brief recess, the state conceded

that the sexual assault charges are barred under § 54-

193a, and the court granted the motion for a judgment

of acquittal as to the four counts of sexual assault in

the second degree . . . . Thereafter, the state filed a

new information limited to the four counts of risk of

injury to a child, and the jury found the [petitioner]

guilty of those charges.’’3

(Footnote added; footnote

in original; footnotes omitted.) Id., 759–63. The court

thereafter sentenced the petitioner to twenty years of

incarceration, execution suspended after twelve years,

followed by ten years of probation. Id., 764.

On November 12, 2021, the petitioner commenced

the underlying action pursuant to Practice Book § 42-

55 and General Statutes § 52-270.4

In the operative

amended petition for a new trial, filed on September

28, 2022,5

the petitioner argued that he was entitled to

a new trial on the basis of newly discovered evidence.

According to the petitioner, the new evidence, if credited by a jury, would support a finding that the petitioner

‘‘was factually innocent of the charges against him.’’

The purported new evidence came to light as a result

of testimony given by another rabbi, Aviad Hack, during

a deposition in the federal civil lawsuit. Hack had ‘‘deep

familiarity’’ with both E and the petitioner. Hack had

been the assistant dean for the yeshiva at the time E

attended, and, according to Hack, at the same time that

the petitioner had been abusing E, the petitioner also

was involved in a sexual relationship with Hack that

had started when Hack himself was a student at the

yeshiva. The petitioner argued that Hack’s testimony

at a new trial would establish ‘‘with certainty’’ that any

sexual misconduct by the petitioner toward E could

not have begun until after E’s sixteenth birthday. An

affidavit sworn by Hack and dated October 29, 2021,

was attached to the original petition for a new trial. In

this affidavit, Hack averred that he had given deposition

testimony in E’s federal civil action but that he later

evaded service of process in both the federal action

and the state court criminal trial. He further stated in

his affidavit that, ‘‘to my knowledge, no acts of miscon-
duct by [the petitioner] toward [E] occurred prior to

[E’s] 16th birthday. The first such act, to my memory,

occurred in or about January, 2004.’’ (Emphasis added.)

It was an essential element of the risk of injury to a

child counts of which the petitioner was convicted that

the child be ‘‘under the age of sixteen years . . . .’’

(Emphasis added.) General Statutes § 53-21 (a) (2).6

It

is undisputed that E was sixteen years old in January, 2004.

The court, Hon. Jon C. Blue, judge trial referee, conducted a trial on the petition for a new trial on July 20

and September 23, 2022. In support of his petition, the

petitioner presented testimony from himself and Hack,

who testified, inter alia, regarding his civil deposition

testimony and the factual basis for the statements in

his affidavit regarding E’s age. The respondent, the State

of Connecticut, called no witnesses of its own. Following the trial, the parties submitted simultaneous posttrial briefs, and the petitioner thereafter submitted a

reply brief. The court heard additional postevidence

arguments on November 9, 2022.

On November 17, 2022, the court issued its second

corrected memorandum of decision in which it denied

the amended petition for a new trial. The court first

noted that the petitioner’s defense strategy had changed

since his criminal trial at which his primary defense

was to attack E’s credibility and thus, by implication,

the veracity of his allegations of sexual abuse. The court

also noted that the petitioner was now conceding that

some of the alleged sexual acts occurred, but only after

E had turned sixteen. The court next turned to a discussion of the petitioner’s proffered new evidence, which

the court found less than compelling for several reasons. The court explained in part: ‘‘The evidence submitted to establish [the petitioner’s] new [theory of

defense] is the testimony of [Hack and his affidavit].

. . . Hack’s affidavit is cautiously worded—the phrases

‘to my knowledge’ and ‘to my memory’ allow for a great

deal of wiggle room. The obvious question that arises

is ‘How does he know?’ His testimony on the stand

failed to answer this question satisfactorily.

‘‘Hack admitted in his testimony that he had not been

present during any sexual acts between [the petitioner]

and E. He additionally admitted that he had not been

present with E twenty-four hours a day, seven days a

week during the time in question. It is clear that all

manner of sexual misconduct could have occurred

between [the petitioner] and E prior to E’s sixteenth

birthday that Hack simply would not have observed or

known of.

‘‘Hack’s ‘knowledge’ turns out to be a series of inferences, some of them quite thin. He reasoned that since

[the petitioner] had not sexually abused him prior to his

sixteenth birthday, the same pattern would necessarily

apply to E. On cross-examination, however, Hack
admitted that [the petitioner] had ‘groomed’ him prior

to his sixteenth birthday. In addition, [the petitioner]

first abused Hack in 1992, whereas E testified [at the

criminal trial] that [the petitioner] had first abused him

. . . a decade later, [and] so it is not unreasonable to

conclude that [the petitioner’s] seduction timetable may

have altered in the intervening years.

‘‘Hack testified that one location at which he and [the

petitioner] had (adult) sexual relations was 139 West

Park. On one occasion, apparently in late fall 2003, [the

petitioner] told Hack, ‘I was just here with [E].’ . . .

Assuming this to be true, this statement hardly establishes that [the petitioner] had been there with E for

the first time, or even were that to be the case, that

[the petitioner] and E had not previously engaged in

sexual acts in a variety of other locations.

‘‘Hack’s additional theory is that [the petitioner] could

not have engaged in sexual acts with E prior to October

27, 2003, because [the petitioner] ‘detested’ E until later

in the academic year. The flaw in this theory is obvious.

[The petitioner’s] relationship with E was not a relationship based on love. It was a relationship based on predation. [The petitioner] may not have liked E but nevertheless found him to be a convenient object of sexual

desire.

‘‘Hack additionally testified that E called him during

the winter of 2020–2021 and asked Hack whether [E]

was ‘really under sixteen at the time.’ This purported

statement does not amount to a retraction of E’s clear

evidence in the criminal trial that E was indeed under

the age of sixteen when he was sexually assaulted by

[the petitioner].

‘‘In addition to obvious logical issues with his theories, Hack turns out to have credibility issues as well.

He admits that he repeatedly evaded service of process

in both the federal and state actions. His testimony that

coming forth at this late date was the ‘right’ thing to

do rests uneasily with his deliberate failure to accept

service of process on occasions when coming forth

would have been yet more ‘right.’

‘‘Beyond this, on cross-examination, Hack admitted

to a remarkable series of events. Sometime after the

federal court awarded E over $21 million in damages

against [the petitioner] for sexual abuse, [the petitioner]

brought an action against Hack in a rabbinical court,

called a Din Torah, alleging that Hack was liable to [the

petitioner] for the full amount of the judgment. The last

hearing in the rabbinical court was in the summer of

2021. Although Hack’s testimony leaves the exact litigational details murky . . . he and [the petitioner]

reached a settlement in the fall of 2021 in which Hack

agreed to sign an affidavit and appear in court to give

his testimony in the present case.’’ In short, the court

found significant issues regarding Hack’s credibility
that further weakened the persuasiveness of his testimony.

For purposes of its analysis, the court assumed without deciding that the petitioner had established that the

evidence he proffered in support of his petition for a

new trial was, in fact, newly discovered; that the evidence would be material in a new trial; and that it was

not merely cumulative of other evidence. The court

concluded, however, that the petitioner ‘‘assuredly

[had] not’’ established that the proffered new evidence

would probably produce a different result in a new trial.

It was on this basis that the court denied the petition

for a new trial.

The court reasoned as follows: ‘‘After a careful consideration of all of the evidence, the court is not persuaded that a jury would find [the petitioner] not guilty

after hearing the new evidence submitted in the present

case. If anything, the new evidence, if submitted to a

jury, would seal [the petitioner’s] doom.

‘‘It is one thing to claim, as [the petitioner’s] able

counsel did in the original trial, that E’s testimony concerning the [petitioner’s] sexual abuse was not credible.

The obvious implication of counsel’s argument was that

the alleged acts of sexual abuse had not been proven.

It is another thing to claim, as Hack testified in the

present case, that the acts of sexual abuse did occur,

but at a slightly later time.

‘‘Beyond this, if the jury were to hear that [the petitioner] had previously preyed upon Hack, ‘grooming’

him prior to his sixteenth birthday, the likelihood of

conviction would approach a near certainty. Defense

attorneys ordinarily attempt to exclude evidence of previous sexual misconduct. It is the rare defense attorney

who affirmatively attempts to introduce such evidence.

‘‘For all these reasons, it is exceedingly unlikely that

Hack would even be called as a witness by the defense

in a new trial. If anything, it is the state that would

attempt to introduce such evidence.’’ (Emphasis omitted.) The court denied the petition, and this appeal

followed.

We begin our discussion of the petitioner’s claims by

setting forth governing legal principles, including our

standard of review. ‘‘Pursuant to § 52-270, a convicted

criminal defendant may petition the Superior Court for

a new trial on the basis of newly discovered evidence.

See Practice Book § 42-55. A trial court’s decision on

that ground is governed by the standard set forth in

Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578

(1987), and further refined in Shabazz v. State, 259

Conn. 811, 827–28, 792 A.2d 797 (2002). Under Asherman, a court is justified in granting a petition for a new

trial [if] the petitioner demonstrates that the evidence

offered in support thereof: (1) is newly discovered such

that it could not have been discovered previously
despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative;

and (4) is likely to produce a different result in the

event of a new trial.’’ (Internal quotation marks omitted.) Carter v. State, 159 Conn. App. 209, 222, 122 A.3d

720, cert. denied, 319 Conn. 930, 125 A.3d 204 (2015).

‘‘This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered

it is to be considered final, and should not be disturbed

by posttrial motions except for a compelling reason.’’

(Internal quotation marks omitted.) Asherman v. State,

supra, 202 Conn. 434.

In Shabazz v. State, supra, 259 Conn. 811, our

Supreme Court explained that ‘‘trial courts should utilize the following approach when applying the fourth

element of the Asherman test. The trial court must

always consider the newly discovered evidence in the

context of the evidence presented in the original trial.

In so doing, it must determine, first, that the evidence

passes a minimum credibility threshold. That is, if, in

the trial court’s opinion, the newly discovered evidence

simply is not credible, it may legitimately determine

that, even if presented to a new jury in a second trial,

it probably would not yield a different result and may

deny the petition on that basis. . . . If, however, the

trial court determines that the evidence is sufficiently

credible so that, if a second jury were to consider it

together with all of the original trial evidence, it probably would yield a different result or otherwise avoid an

injustice, the fourth element of the Asherman test

would be satisfied.’’ (Citation omitted.) Id., 827–28.

‘‘[T]he petitioner has the burden of alleging and proving facts [that] would, in conformity with our settled

equitable construction of the statutes, entitle him to a

new trial on the grounds claimed . . . .’’ (Internal quotation marks omitted.) Carter v. State, supra, 159 Conn.

App. 226. ‘‘It is within the discretion of the trial court

to determine, upon examination of all the evidence,

whether the petitioner has established substantial

grounds for a new trial, and the judgment of the trial

court will be set aside on appeal only if it reflects a

clear abuse of discretion.’’ Asherman v. State, supra,

202 Conn. 434.

We now turn to the petitioner’s claims on appeal.

The petitioner claims that, in denying his petition for

a new trial premised on newly discovered evidence, the

court improperly concluded that the purported new

evidence would not lead to a different result if a new

trial was granted because the court (1) failed to give

sufficient weight to the recent statements by E to Hack

that, if credited, raised doubt regarding E’s age when

the sexual abuse underlying the petitioner’s conviction

occurred, and (2) erroneously found that it was not

likely that a defense attorney would introduce Hack’s

testimony at a new trial if granted because the testimony
would be highly prejudicial to the petitioner and likely

would undermine, rather than aid, his defense. We conclude that the court did not abuse its discretion in

concluding that the proffered new evidence was not

likely to produce a different result in the event of a

new trial.7

‘‘The burden of proving the probability of a different

result is upon the [petitioner], and in determining that

issue the trial court exercises a discretion [that] cannot

be set aside unless its discretionary power has been

abused.8

. . . The petitioner must overcome a high

hurdle to establish such an abuse of discretion. To meet

the fourth element of Asherman, [t]he [petitioner] must

persuade the court that the new evidence he submits

will probably, not merely possibly, result in a different

verdict at a new trial . . . . It is not sufficient for him

to bring in new evidence from which a jury could find

him not guilty—it must be evidence [that] persuades the

judge that a jury would find him not guilty.’’ (Citations

omitted; emphasis in original; footnote added; internal

quotation marks omitted.) Mitchell v. State, 338 Conn.

66, 97, 257 A.3d 259 (2021).

The petitioner asserts on appeal that the court failed

to give sufficient weight to that portion of Hack’s testimony in which he recounted that E recently made statements to Hack regarding whether E in fact was under

sixteen years old when the sexual abuse underlying the

petitioner’s conviction occurred. The petitioner argues

that, if credited by a jury, these statements likely would

raise reasonable doubt regarding the petitioner’s guilt.

There can be no doubt that the court gave due consideration to Hack’s testimony regarding E’s statement

because the court specifically addressed that aspect of

the new evidence in its memorandum of decision. The

court concluded that this evidence would have done

little to undermine the ‘‘clear evidence in the criminal

trial that E was indeed under the age of sixteen when

he was sexually assaulted by [the petitioner].’’ In other

words, the court did not, as suggested by the petitioner,

fail to recognize the significance of E’s posttrial uncertainty, it simply was unconvinced that a jury hearing

this evidence would have reached a different conclusion

regarding the petitioner’s guilt in light of the totality of

the evidence presented. The court’s overall finding that

Hack’s testimony lacked credibility and, thus, was

unlikely to be credited by a jury, applied equally to his

testimony regarding the alleged new statements by E.

Moreover, we agree with the trial court’s assessment

that E’s purported statement to Hack was vague.

According to Hack’s testimony, E never affirmatively

stated that he was sixteen years old or older when

the petitioner first abused him. At best, his statement

indicated possible confusion or doubt on E’s part, but

it certainly did not amount to a retraction of his trial

testimony that helped to establish a timeline from which
the jury reasonably could have found that his sexual

abuse by the defendant started prior to E turning sixteen. As the petitioner recognizes, E’s testimony during

the criminal trial contained statements suggesting that

he was not able to discern precise dates and details of

every sexual encounter with the petitioner; nonetheless,

he testified that he was ‘‘very sure’’ that the sexual

contact at issue had occurred in 2002 and 2003, and

the jury presumably credited that portion of his testimony. The only evidence before the trial court regarding

the exact wording and context of E’s purported posttrial

statement to Hack was Hack’s testimony. The petitioner, who had the burden of proof with respect to

the petition for new trial, did not present any evidence

corroborating Hack’s testimony.9 See Skakel v. State,

295 Conn. 447, 484–85, 991 A.2d 414 (2010) (it was

proper for court hearing petition for new trial to consider lack of corroboration when applying forth prong

of Asherman test). Finally, it is axiomatic that this

court, in reviewing a court’s decision on a petition for

new trial based upon newly discovered evidence, cannot substitute its own assessment as to the proper

weight, if any, to be given any piece of evidence offered;

see Jones v. State, 328 Conn. 84, 94, 177 A.3d 534 (2018);

or revisit a trial court’s assessment regarding the credibility of a witness. See State v. Lawrence, 282 Conn.

141, 156–57, 920 A.2d 236 (2007) (appellate courts defer

to trial court’s assessments concerning credibility and

will not retry such credibility determinations on

appeal).

In the present case, Judge Blue made express statements questioning the credibility of Hack and his testimony. The court found that Hack’s use of the phrases

‘‘to my knowledge’’ and ‘‘to my memory’’ in his affidavit

coupled with the fact that he later admitted in his testimony at the hearing on the petition for a new trial that

he could not account for E’s whereabouts at all times

during the relevant period made it possible that ‘‘all

manner of sexual misconduct could have occurred

between [the petitioner] and E prior to E’s sixteenth

birthday that Hack simply would not have observed or

known of.’’

More importantly, in addition to noting a number of

unreasonable inferences that Hack advanced in support

of his statement that E could not have been under the

age of sixteen at the time he was first abused by the

petitioner, the court provided a number of reasons why

Hack was not a credible witness. First, Hack admitted

that he had acted to evade service of process in both

the federal civil action and the state criminal action.

He came forward with his current affidavit and testimony only after reaching a settlement agreement with

the petitioner to resolve the action that the petitioner

had brought against him in rabbinical court seeking to

hold him liable for the $21 million federal civil judgment.

In short, the court found significant issues regarding
Hack’s credibility, further weakening the persuasiveness

of his testimony and making it less likely that a jury

would find his testimony credible.

Although the petitioner makes various arguments as

to why a court might reach a different conclusion

regarding Hack’s credibility, as previously stated, this

court will not revisit a court’s credibility determinations. State v. Lawrence, supra, 282 Conn. 157. ‘‘[I]t is

solely within the discretion of the trial court to determine, upon examination of both the newly discovered

evidence and that previously produced at trial, whether

the petitioner has established substantial grounds for

a new trial.’’ Shabazz v. State, supra, 259 Conn. 821–22.

Having reviewed the record and the arguments of the

parties, we conclude that the court did not abuse its

discretion in determining that the petitioner’s purported

new evidence, which consisted wholly of Hack’s affidavit and testimony, would not, if introduced at a new

trial, likely result in a different outcome.

The judgment is affirmed.

In this opinion the other judges concurred.

1

‘‘In accordance with our policy of protecting the privacy interests of the

victims of the crime of risk of injury to a child, we decline to identify the

victims or others through whom the victims’ identities may be ascertained.

See General Statutes § 54-86e.’’ State v. Greer, supra, 213 Conn. App. 759 n.2.

2 As indicated by the trial court in its decision on the petition for a new

trial, the petitioner eventually was ordered in the federal civil lawsuit to

pay $21,749,041 in damages for his sexual abuse of E.

3

‘‘The [petitioner] filed postverdict motions for a judgment of acquittal

and a new trial. . . . [T]he [petitioner] claimed, inter alia, that the same

limitation period applicable to sexual assault in the second degree should

apply to the risk of injury charges because all of the charges were based

on the same conduct. After hearing argument, the court rejected the [petitioner’s] statute of limitations claim and denied the motions.’’ (Footnote omitted.) State v. Greer, supra, 213 Conn. App. 763–64. On direct appeal, this

court affirmed the trial court’s ruling regarding the statute of limitations

claim and rejected a claim that the court improperly had instructed the jury

regarding uncharged misconduct evidence. Id., 775, 786.

4 Practice Book § 42-55 provides: ‘‘A request for a new trial on the ground

of newly discovered evidence shall be called a petition for a new trial and

shall be brought in accordance with General Statutes § 52-270. The judicial

authority may grant the petition even though an appeal is pending.’’

General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant a

new trial of any action that may come before it, for mispleading, the discovery

of new evidence or want of actual notice of the action to any defendant or

of a reasonable opportunity to appear and defend, when a just defense in

whole or part existed, or the want of actual notice to any plaintiff of the

entry of a nonsuit for failure to appear at trial or dismissal for failure to

prosecute with reasonable diligence, or for other reasonable cause,

according to the usual rules in such cases. The judges of the Superior Court

may in addition provide by rule for the granting of new trials upon prompt

request in cases where the parties or their counsel have not adequately

protected their rights during the original trial of an action.’’

5 The petitioner initially proceeded at trial on the original petition, but

the court later permitted him to amend the petition in part to conform with

the evidence that had thus far been presented at trial.

6 General Statutes § 53-21 provides in relevant part: ‘‘(a) Any person who

. . . (2) has contact with the intimate parts . . . of a child under the age

of sixteen years or subjects a child under sixteen years of age to contact

with the intimate parts of such person, in a sexual and indecent manner

likely to impair the health or morals of such child . . . shall be guilty of

. . . a class B felony . . . .’’

7 Because we conclude that the court properly determined that the proffered new evidence, if presented to a jury, would not likely produce a
different result, it is unnecessary for us to review the court’s alternative

finding that, even if it granted a new trial, it was unlikely that defense counsel

would introduce Hack’s testimony because it would be highly prejudicial

to the petitioner and significantly increase rather than decrease his likelihood

of conviction.

8

In Jones v. State, 328 Conn. 84, 87, 177 A.3d 534 (2018), our Supreme

Court recognized an exception in which appellate courts would exercise

de novo review if the petition for a new trial was decided by a judge who

did not preside over the original trial and no fact finding was necessary

because both parties agreed that the new evidence was fully credible. Here,

although Judge Blue did not preside over the original trial, there was no

agreement by the parties that the new evidence was fully credible; to the

contrary, Hack’s credibility and, by implication, the credibility of his testimony was in dispute. Accordingly, it is appropriate to apply the abuse of

discretion standard.

9 The petitioner argues that the state could have called E to testify at the

hearing on the petition for a new trial about his statements if it wished to

try and contradict Hack’s testimony. It is not the state’s burden, however,

to disprove the credibility of the evidence offered in support of a petition

for new trial. The burden of persuasion is on the petitioner, and a petitioner’s

failure to demonstrate the credibility of the evidence proffered is a reasonable ground on which a court may deny a petition for new trial. See Shabazz

v. State, supra, 259 Conn. 827.