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*********************************************** 
STATE OF CONNECTICUT v. BERNARD J. PELUSO

(AC 40998)

DiPentima, C. J., and Sheldon and Bear, Js.

Syllabus

Convicted of the crimes of sexual assault in the first degree, sexual assault

in the fourth degree and risk of injury to a child in connection with

his alleged sexual abuse of the minor victim, the defendant appealed,

claiming, inter alia, that the state lacked good cause to amend the

information during the trial. The defendant was alleged to have sexually

assaulted the victim when the defendant lived in the same condominium

complex as the victim’s family. The long form information alleged that

the incidents occurred during either 2010 or 2011, which was when the

victim was in the fifth grade. During trial, however, the victim testified

that the incidents had taken place when she was in the third grade,

which would have been either in 2008 or 2009. Thereafter, the defendant

filed a motion for a judgment of acquittal on the ground that the alleged

offenses could not have occurred during the time frame provided in the

state’s information, as he had moved out of the condominium complex

in 2010. Subsequently, the state filed a motion to amend its information

to conform to the victim’s testimony to allege that the offenses occurred

in either 2008 or 2009. The court denied the defendant’s motion for a

judgment of acquittal and granted the state’s motion to amend. On the

defendant’s appeal, held:

1. The trial court did not abuse its discretion in permitting the state to

amend its information to conform to the victim’s testimony as to when

the offenses alleged in the information had occurred; this court, having

recognized that prosecuting child sexual assault cases presents a unique

set of challenges, has permitted amendments during trial where testimony suggested that the offenses occurred outside the time frame

alleged in the operative information, and in light of the victim’s age and

the length of time between when the offenses allegedly occurred and

when the prosecution of this matter took place, and the rationale that

has guided this court’s precedent with respect to this issue, the state

had good cause to amend its information during trial, as the victim’s

statements to investigators prior to the commencement of trial indicated

a less specific time frame than the one she ultimately identified in her

testimony, and there was no indication that had the state been more

diligent in its pretrial investigation, it could have alleged a more precise

time frame before trial.

2. The defendant’s claim that the court erred in concluding that his substantive rights were not prejudiced by the state’s amendment to its information was unavailing: although the defendant contended that his entire

defense was predicated on claiming that he did not live in the condominium complex at the time alleged in the information, given the nature of

the allegations and the information available to him, the state’s amendment did not deprive him of adequate notice, nor was he prejudiced by

the amendment, as he clearly was aware of the time frame that was at

issue regardless of the dates that were provided in the information prior

to trial; moreover, the trial court did not abuse its discretion in deciding

that a one week continuance was sufficient time for the defendant to

augment his defense in response to the amended information, as the

court, without addressing whether the defendant had been prejudiced

by the amendment to the information, indicated that it was willing to

allow the defendant as much time as he needed to reconfigure his

defense, the defendant did not provide any substantive basis for his

request for a five week continuance apart from a general need to investigate and ascertain his whereabouts during the new time frame, and

following the court’s decision to grant the defendant only a one week

continuance, the defendant informed the court he was willing to accept

a three day continuance.

Argued October 23, 2018—officially released January 29, 2019

Procedural History
Substitute information charging the defendant with

two counts each of the crimes of sexual assault in the

first degree and sexual assault in the fourth degree, and

with three counts of the crime of risk of injury to a child,

brought to the Superior Court in the judicial district of

Waterbury and tried to the jury before K. Murphy, J.;

thereafter, the court granted the state’s motion to

amend its information and denied the defendant’s

motion for judgment of acquittal; verdict and judgment

of guilty, from which the defendant appealed. Affirmed.

James P. Sexton, assigned counsel, with whom were

Megan L. Wade, assigned counsel, and, on the brief,

Matthew C. Eagan, assigned counsel, and Marina L.

Green, assigned counsel, for the appellant (defendant).

Ronald G. Weller, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Amy Sendensky, senior assistant state’s

attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Bernard J. Peluso,

appeals from the judgment of conviction, rendered after

a jury trial, on two counts of sexual assault in the first

degree in violation of General Statutes § 53a-70 (a) (2),

two counts of sexual assault in the fourth degree in

violation of General Statutes § 53a-73a (a) (1) (A), and

three counts of risk of injury to a child in violation of

General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly granted the

state’s motion to amend its information.1 Specifically,

he argues that the state lacked good cause to amend

its information during trial and, alternatively, that the

court improperly concluded that his substantive rights

would not be prejudiced by the amendment. We disagree and, thus, affirm the judgment of conviction.

The jury reasonably could have found the following

facts in support of its verdict. In 2008 and 2009, when

the victim, S,2 was in the third grade, she lived in a

condominium complex with her mother, her older sister, L, and her older brother. During this time, the defendant lived in the same condominium complex and,

approximately three to five times a week, S and L would

spend time with him after school. The defendant was

‘‘like an uncle’’ to the girls, and he called them ‘‘his

nieces.’’ Although the defendant had a girlfriend who

lived with him, she typically was not home when the

girls came over. At some point, while S was still in the

third grade, the defendant began to make suggestive

comments to her. Soon thereafter, the defendant began

sexually assaulting S.

The state charged the defendant in connection with

three separate incidents.3 The first incident of sexual

assault occurred when the defendant and S were alone

watching a movie on the couch in the defendant’s living

room. The defendant put his hands down the S’s pants,

touched her vagina and digitally penetrated her. After

he touched her, the defendant kissed her neck and

made her place her hands on his jeans, over his penis.

Following the incident, and before she went home, the

defendant told S not to tell his girlfriend.

The second incident occurred when S came over

to the defendant’s house while he was shaving. The

defendant told S to come into the bathroom. When S

came into the bathroom, she noticed that the defendant

was wearing only a towel, which was wrapped around

his waist. While S was in the bathroom with him, the

defendant went over to the toilet and urinated. While

he was doing so, he told S to touch his penis, which

she did. Later that same day, S went and used the

defendant’s bathroom. While she was in the bathroom,

the defendant opened the door and stared at her.

Finally, the third incident occurred when, on another

occasion, the defendant took S upstairs to his computer
room. He made S lie on the floor while he performed

cunnilingus on her. As with the prior incident on the

couch, the defendant told S not to tell his girlfriend.

At some point after S had finished third grade, the

defendant and his girlfriend moved out of the condominium complex. Occasionally, S would still see the defendant, most often when her grandmother would take her

out to eat at the restaurant that he owned. As she got

older, S saw the defendant less and less frequently. The

last time she encountered him was when she was in

the ninth grade. S was walking home from her bus stop

with a friend, when the defendant pulled up alongside

the two girls in his pickup truck. The defendant talked

to S briefly before writing down his phone number and

giving it to her. He told S to call him sometime.

In January, 2015, S told a friend about the sexual

abuse she had experienced as a child. The next day, the

friend notified a guidance counselor, and, in accordance

with her obligations as a mandated reporter,4

the guidance counselor informed the police. Later that day,

detectives interviewed S about the allegations. S provided the police with a written statement, in which she

detailed the incidents that had occurred while she was

in elementary school. In her statement, S indicated that

the incidents had occurred when she was in the fifth

grade.

Soon thereafter, the defendant was arrested and

charged. The long form information, dated April 19,

2016, alleged that the incidents had occurred during

either 2010 or 2011. During trial, however, S testified

that the incidents had taken place when she was in the

third grade, which would have been in either 2008 or

2009. The following day, the defendant filed a motion

for a judgment of acquittal, and the state filed a motion

to amend its information to allege that the offenses had

occurred in either 2008 or 2009. The court granted the

state’s motion to amend and denied the defendant’s

motion for judgment of acquittal. The jury subsequently

found the defendant guilty on all seven counts. The

court rendered judgment accordingly and sentenced

the defendant to a total effective sentence of twentytwo years of incarceration, execution suspended after

twelve years, followed by fifteen years of probation.

This appeal followed.

With respect to the defendant’s only operative claim

on appeal, we begin by noting that a trial court’s decision to permit the state to amend its information is

reviewed for an abuse of discretion. State v. Grant, 83

Conn. App. 90, 96–97, 848 A.2d 549, cert. denied, 270

Conn. 913, 853 A.2d 529 (2004). We acknowledge, however, that although ‘‘a prosecutor has broad authority

to amend an information under Practice Book § [36-

17]’’ prior to the commencement of the trial, ‘‘[o]nce

the trial has started . . . the prosecutor is constrained

by the provisions of Practice Book § [36-18]. . . . Prac-
tice Book § 36-18 provides in relevant part: After commencement of the trial for good cause shown, the

judicial authority may permit the prosecuting authority

to amend the information at any time before a verdict

or finding if no additional or different offense is charged

and no substantive rights of the defendant would be

prejudiced. . . . It is well settled that the state bears

the burden of demonstrating that it has complied with

the requirements of § 36-18 in seeking permission to

amend the information.’’ (Citations omitted; internal

quotation marks omitted.) State v. Ayala, 324 Conn.

571, 585, 153 A.3d 588 (2017).

The following additional facts and procedural history

are relevant to the defendant’s claim. The day after S

testified, the defendant filed a motion for a judgment

of acquittal on the grounds that the alleged offenses

could not have occurred during the time frame provided

in the state’s information. In response to the defendant’s

motion, the state filed a motion to amend its information

to conform to the victim’s testimony. The defendant

objected to the motion to amend, arguing that the state

lacked good cause to do so because S had consulted

with prosecutors at least two weeks prior to trial and,

during this meeting, it was determined that the incidents

could not have occurred in 2010 or 2011.5 Thus, it was

the defendant’s position that the state had no justifiable

reason for failing to amend its information before the

commencement of trial. Alternatively, the defendant

argued that he would be prejudiced by the late amendment insofar as his defense was predicated largely on

the fact that he did not live in the condominium complex

when the incidents were alleged to have occurred.

The state claimed that, although prosecutors had spoken with S prior to trial about the issue with the time

frame provided in her police statement, S maintained

during this meeting that the incidents had occurred

when she was in the fifth grade or earlier. The state

averred that it did not know precisely when the incidents had taken place until S testified at trial. Moreover,

the state argued that the defendant’s claim of prejudice

was without merit because he knew that the charged

offenses were alleged to have occurred when he was

living in the condominium complex, which would have

been before 2010.6

Mindful that it is often difficult for prosecutors to

delineate specific time frames in cases involving allegations of sexual assault against minor victims, the court

granted the state’s motion to amend its information. In

so doing, the court offered to grant the defendant a

continuance in order to prepare his defense in light of

the newly amended information. After a brief recess,

the following colloquy occurred:

‘‘[Defense Counsel]: We’re going to need a continuance, Your Honor.
‘‘The Court: Okay, and how long do you need?

‘‘[Defense Counsel]: We’re going to need at least

five weeks.

‘‘The Court: Why?

‘‘[Defense Counsel]: He’s got a number of employers.

We have to hire an investigator.

‘‘The Court: To do what? No. No. No. Be specific

here. . . . We’re not taking a five week continuance

unless—if you need a five week continuance, you’ll get

it. You need to tell me what it is in your defense not

what his employer needs.

* * *

‘‘[Defense Counsel]: We need to track his whereabouts now from the time this girl was eight years old

’til the time—

‘‘The Court: You don’t need to track his whereabouts.

* * *

‘‘So, what is it you need to do during this continuance

period? Be as specific as possible.

‘‘[Defense Counsel]: Your Honor, we need to investigate.

‘‘The Court: Don’t just say investigate. You need to

be more specific so I can evaluate [the] timeframe that

you need. You said you need to do some records

checking.

‘‘[Defense Counsel]: Yes, Your Honor.

‘‘The Court: Okay. I will give you a week continuance

and if that’s your request, you can subpoena in any

witness that you feel you need to examine as well as

anyone that’s already been called you could examine

again.

‘‘[Defense Counsel]: Thank you.’’

On appeal, the defendant claims that the court abused

its discretion in concluding (1) that the state had good

cause to seek an amendment to its information during

trial and (2) that the defendant, having been granted

a one week continuance, was not prejudiced by the

amendment. We do not agree.

Pursuant to Practice Book § 36-18, ‘‘[g]ood cause

. . . assumes some circumstance that the state could

not have reasonably anticipated or safeguarded against

before trial commenced.’’ State v. Ayala, supra, 324

Conn. 585–86. ‘‘To meet its burden of showing good

cause to amend an information pursuant to the rules

of practice, the state must provide more than a bare

assertion that it is merely conforming the charge to the

evidence.’’ State v. Jordan, 132 Conn. App. 817, 825, 33

A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119

(2012). This court has recognized, however, that prose-
cuting child sexual assault cases presents a unique set of

challenges, and, thus, we have permitted amendments

during trial where testimony suggests that the offenses

occurred outside the time frame alleged in the operative

information. See, e.g., State v. Victor C., 145 Conn. App.

54, 66, 75 A.3d 48 (good cause for amendment where

victim could not remember specific date incidents

occurred and other witness’ testimony was inconsistent

with time frame in the original information), cert.

denied, 310 Conn. 933, 78 A.3d 859 (2013); State v.

Grant, 83 Conn. App. 90, 95–98, 848 A.2d 549 (affirming

trial court’s decision that in light of victim’s age there

was good cause to amend information to conform to

victim’s testimony), cert. denied, 270 Conn. 913, 853

A.2d 529 (2004).

Cognizant of the rationale that has guided our precedent with respect to this issue, and in light of the victim’s

age and the length of time between when the offenses

allegedly occurred and when the prosecution of this

matter took place, we conclude that the state had good

cause to amend its information during trial. As in State

v. Grant, supra, 83 Conn. App. 93–94, S’s statements

to investigators prior to the commencement of trial

indicated a less specific time frame than the one she

ultimately identified in her testimony. Further, there is

no indication that had the state been more diligent in

its pretrial investigation it could have alleged a more

precise time frame before trial. See State v. Wilson F.,

77 Conn. App. 405, 413, 823 A.2d 406, cert. denied, 265

Conn. 905, 831 A.2d 254 (2003). Simply stated, the court

did not abuse its discretion in permitting the state to

amend its information to conform to the victim’s testimony as to when the offenses alleged in the information

had occurred.

The defendant also claims that the court erred in

concluding that his substantive rights were not prejudiced by the state’s amendment. ‘‘In the prejudice analysis, the decisive question is whether the defendant was

informed of the charges with sufficient precision to be

able to prepare an adequate defense. . . . If the defendant has not asserted an alibi defense and time is not

an element of the crime, then there is no prejudice

when the state amends the information to amplify or

to correct the time of the commission of the offense.

. . . Ultimately, if the amendment has no effect on the

defendant’s asserted defense, there is no prejudice.’’

(Citations omitted; internal quotation marks omitted.)

State v. Enrique F., 146 Conn. App. 820, 826, 79 A.3d 140

(2013), cert. denied, 311 Conn. 903, 83 A.3d 350 (2014).

Here, the defendant did not assert an alibi defense

and, although he contends that his entire defense was

predicated on claiming he did not live in the condominium complex at the time alleged in the information, we

conclude that on the basis of the nature of the allegations and the information available to him, the state’s
amendment did not deprive the defendant of adequate

notice. As the state argued in its brief, the victim’s

statement to the police indicated that the offenses had

occurred while she was spending time with the defendant when he was living in the condominium complex.

Further, the defendant acknowledged prior to trial that

some aspects of the charged offenses, and the

uncharged prior misconduct, had in fact occurred, but

disputed the allegations of inappropriate behavior

asserted therein.7

In this regard, we cannot conclude

that the defendant was prejudiced by the amendment,

given that he clearly was aware of the time frame that

was at issue, regardless of the dates that were provided

in the information prior to trial.8 See State v. Victor C.,

supra, 145 Conn. App. 67 (forensic interview report

provided to defendant before trial indicated time frame

at issue).

In conjunction with this claim, the defendant argues

that the court agreed to grant him with a continuance

as a means of mitigating the prejudice created by the

state’s amendment to the information, and that the

court erred insofar as it determined that a one week

continuance was sufficient.9 We disagree. The court,

without addressing whether the defendant had been

prejudiced by the amendment to the information, indicated that it was willing to allow the defendant as much

time as he needed to reconfigure his defense. When

asked to articulate the reasoning behind his request for

a five week continuance, however, the defendant could

not provide any substantive basis apart from a general

need to ‘‘investigate’’ and ascertain his whereabouts

during the new time frame. Further, following the

court’s decision to grant the defendant only a one week

continuance, the defendant informed the court that he

was willing to accept a three day continuance instead.

Accordingly, to the extent that there is any support in

the record for the assertion that the court offered a

continuance as a means of addressing the prejudice

prong of Practice Book § 36-18, we conclude that the

trial court did not abuse its discretion in deciding that

a one week continuance was sufficient time for the

defendant to augment his defense in response to the

amended information.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also claims on appeal that his sentence is illegal insofar

as the court imposed fifteen years of probation for his conviction of multiple

counts of sexual assault in the first degree in violation of § 53a-70 (a) (2).

He argues, and the state agrees, that a conviction under § 53a-70 (a) (2) is

a class A felony and, pursuant to General Statutes § 53a-29 (a) and our

Supreme Court’s holding in State v. Victor O., 301 Conn. 163, 193, 20 A.3d

669, cert. denied, 565 U.S. 1039, 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011), the

court may impose only a period of special parole, not probation, for any

suspended portion of a sentence imposed for a conviction of a class A

felony. At oral argument, the state agreed that this portion of the defendant’s

sentence was illegal and reported that it had been corrected during the

pendency of this appeal. The defendant agreed that this resolution was

consistent with the relief he had requested. Accordingly, the issue is moot
and we need not address it in this decision.

2

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

victims of the crimes of sexual assault and risk of injury to a child, we

decline to identify the victim or others through whom the identity of the

victim may be ascertained. See General Statutes § 54-86e.

3 S recalled two other instances that were not part of the charged offenses.

The first incident occurred when S was in the defendant’s computer room

and found a pornographic magazine in a desk drawer. The defendant came

into the room and made her look at the magazine with him. While they were

looking at the magazine, the defendant described the sexual acts that were

depicted. The second incident took place when S was in the kitchen with

the defendant; he picked her up, put her on a table and kissed her neck

several times. After this evidence was introduced, the court gave a limiting

instruction to the jury that these two instances of prior misconduct were

not alone sufficient to convict the defendant of the offenses charged in

the information.

4 See General Statutes § 17a-101b.

5 On cross-examination, S testified that when she met with prosecutors

prior to trial, they informed her that the defendant did not live in the

condominium complex when she was in fifth grade.

6 Specifically, the state noted that in her police statement and testimony

at trial, S provided details that clearly indicated the offenses occurred when

the defendant was living in the condominium complex. ‘‘She talks about his

couches, his pornography magazine, his desks, his bed when he clearly is

living there. . . . She talked about how they cooked, how they watched

TV. So this is not an undue surprise to the defendant.’’

7 For example, the state introduced into evidence a telephone call from

prison between the defendant and his girlfriend. During the call, the defendant and his girlfriend discussed an incident that occurred when S came

over while he was in the bathroom.

‘‘[The Defendant’s Girlfriend]: Do you remember talking to me one time

that they came in and caught you in the shower.

‘‘[The Defendant]: Yup.

‘‘[The Defendant’s Girlfriend]: You came out with a towel on and that

kind of got twisted out of shape.

‘‘[The Defendant]: Yeah. I know—’’

The defendant also testified that he recalled an incident in which he found

S and L looking at a Playboy magazine that he owned. He testified that he

admonished the girls for looking at it.

8 Additionally, when the defendant testified at trial, he admitted that he

knew that S was alleging he sexually assaulted her when he was living in

the condominium complex.

9 The defendant also argues that the court improperly placed the burden

on him to justify the need for a five week continuance. The defendant

contends that in cases where the state seeks to amend the information during

trial, the defendant should be entitled to a continuance of a ‘‘presumptively

reasonable’’ length and ‘‘the state should retain the burden . . . for rebutting

that presumptive period if it seeks a shorter continuance.’’ We decline to

adopt this approach. In our view, it would be an unworkable constraint

on the inherent discretion of the trial court to establish a ‘‘presumptively

reasonable’’ continuance period that would not account for the unique factual and procedural circumstances that may arise in a given case. Rather,

it is the proponent’s burden to prove the need for and the length of the

requested continuance, and the court’s decision is subject to an abuse of

discretion standard of review by this court. See, e.g., Kennedy v. Kennedy,

83 Conn. App. 106, 109–110, 847 A.2d 1104 (‘‘A motion for continuance is

addressed to the discretion of the trial court, and its ruling will not be

overturned absent a showing of a clear abuse of discretion. . . . The burden

of proof is upon the party claiming an abuse of discretion. . . . Every

reasonable presumption in favor of the proper exercise of the trial court’s

discretion will be made.’’ [Internal quotation marks omitted.]), cert. denied,

270 Conn. 915, 853 A.2 530 (2004); see also West Haven Lumber Co. v.

Sentry Construction Corp., 117 Conn. App. 465, 472, 979 A.2d 591 (defendant

did not meet burden of proof in showing that court’s denial of motion for

a continuance was unreasonable or arbitrary decision), cert. denied, 294

Conn. 919, 984 A.2d 70 (2009); O’Connell v. O’Connell, 101 Conn. App. 516,

525–27, 922 A.2d 293 (2007).