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*********************************************** 
STATE OF CONNECTICUT v. DAVE ANDAZ

(AC 38888)

Keller, Bright and Pellegrino, Js.

Syllabus

The defendant, who had been on probation in connection with his conviction

of the crime of possession of a weapon or dangerous instrument in a

correctional institution, appealed to this court from the judgment of the

trial court finding him in violation of his probation. As a standard condition of his probation, the defendant was required and agreed not to

violate any state or federal criminal law. During his probation, the defendant was arrested in connection with his assault of a college student,

and he was thereafter arrested a second time and charged with burglary

in the third degree, criminal trespass in the third degree and larceny in

the sixth degree after being found by the police in an abandoned building.

The defendant then was arrested pursuant to a warrant for violation of

his probation. As the basis for his violation of probation, the arrest

warrant application cited the second arrest as a violation of the general

condition of his probation that he not violate any state or federal criminal

law. Six days before the scheduled violation of probation hearing, the

state filed a long form information substituting the defendant’s first

arrest as the underlying basis for the violation of his probation, and the

defendant and his counsel were informed of this change on that same

day. The defendant’s counsel did not object to the change or seek a

continuance of the hearing. Following the hearing, the trial court found

by a preponderance of the evidence that the defendant, by assaulting

the victim, had violated a criminal law, thereby violating a general condition of his probation. The court revoked the defendant’s probation, and

the defendant appealed to this court. On appeal, he claimed, for the

first time, that his due process right to fair notice of the charges against

him was violated by the state’s filing of a substitute information changing

the underlying basis for his violation of probation six days prior to his

violation of probation hearing because the late notice caused him unfair

surprise and prejudice in preparing his defense. Held that the defendant’s

unpreserved due process claim failed under the third prong of the test

set forth in State v. Golding (213 Conn. 233), as the defendant received

adequate notice of the ground on which he ultimately was found to

have violated his probation: it was undisputed that the substitute information was filed six days before the start of the defendant’s probation

hearing and the record revealed that the defendant’s counsel acknowledged that he and the defendant had received the substitute information

that same day, that counsel voiced no objection and did not seek a

continuance at that time and that counsel had reviewed the substitute

information with the defendant prior to the hearing, and the defendant

provided no case law to support the proposition that six days did not

constitute fair notice; moreover, from the arrest warrant and the substitute information, the defendant was aware that he was accused of having

violated the criminal laws of this state because of his recent arrests, as

the defendant was charged with having violated the general condition

of his probation that he would not violate any criminal law, the arrest

warrant application specified that condition as the basis of his violation

and the state did not alter the underlying condition that it alleged the

defendant had violated when it filed the substitute information.

Argued January 2—officially released April 17, 2018

Procedural History

Substitute information charging the defendant with

violation of probation, brought to the Superior Court

in the judicial district of New Haven and tried to the

court, O’Keefe, J.; judgment revoking the defendant’s

probation, from which the defendant appealed to this

court. Affirmed.
Peter Tsimbidaros, assigned counsel, with whom, on

the brief, were Christopher Duby, assigned counsel,

and Robert O’Brien, assigned counsel, for the appellant (defendant).

Linda Currie-Zeffiro, assistant state’s attorney, with

whom, on the brief, were Michael Dearington, former

state’s attorney, and Sean McGuinness, assistant state’s

attorney, for the appellee (state).
Opinion

PELLEGRINO, J. The defendant, Dave Andaz, also

known as David Polek,1 appeals from the judgment of

the trial court finding him in violation of his probation

pursuant to General Statutes § 53a-32.2 On appeal, the

defendant claims that his due process right to fair notice

of the charges against him was violated by the state’s

filing of a substitute information changing the underlying basis for his violation of probation six days prior

to his probation revocation hearing. We disagree and,

accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issue on appeal. On April

29, 2014, the defendant was convicted of possession of

a weapon or dangerous instrument in a correctional

institution in violation of General Statutes § 53a-174a

and sentenced to six years incarceration, execution suspended after thirteen months, followed by three years

of probation. The court imposed and the defendant

agreed to the standard conditions of probation, which

included, inter alia, that he not violate any state or

federal criminal law. The period of probation began

on February 27, 2015. Thereafter, on May 5, 2015, the

defendant was arrested following an incident on the

New Haven green when he and two other individuals

were seen assaulting a student from Yale University.

On July 29, 2015, the defendant was arrested when he

was found in an abandoned building at 301 George

Street in New Haven and charged with burglary in the

third degree in violation of General Statutes § 53a-103,

criminal trespass in the third degree in violation of

General Statutes § 53a-109, and larceny in the sixth

degree in violation of General Statutes § 53a-125b.

On July 30, 2015, the defendant was arrested on a

warrant for a violation of his probation pursuant to

§ 53a-32. As the basis for his violation, the warrant cited

the July 29, 2015 arrest as a violation of the general

condition of probation that the defendant not violate

any state or federal criminal law. An attorney was

appointed to represent the defendant. On December 2,

2015, six days before the date of the violation of probation hearing, the state filed a long form information

substituting the May 5, 2015 arrest, rather than the July

29, 2015 arrest cited in the original warrant, as the

underlying basis for the violation of his probation. The

defendant and his attorney were informed of this

change on December 2, 2015. The defendant’s attorney

did not object to the change or seek a continuance of the

hearing. Following the violation of probation hearing

on December 8, 2015, the court found by a preponderance of the evidence that the defendant, by assaulting

the victim, violated a criminal law, thereby violating a

general condition of his probation. As a result of this

violation, the court revoked the defendant’s probation

and sentenced him to thirty months of incarceration.
This appeal followed. Additional facts will be set forth

as necessary.

The defendant’s sole claim on appeal is that he was

deprived of his due process right to fair notice of the

charges against him when the state filed a substitute

information six days prior to his probation revocation

hearing. The defendant argues that the late notice

caused him unfair surprise and prejudice in preparing

his defense.3 The defendant concedes that his due process claim is unpreserved and seeks review pursuant

to 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).

Pursuant to 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 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. Tucker, 179 Conn.

App. 270, 279, A.3d (2018). ‘‘In the absence of

any one of these conditions, the defendant’s claim will

fail. The appellate tribunal is free, therefore, to respond

to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.’’

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

313 Conn. 461, 469–70, 97 A.3d 963 (2014). Upon review

of the record, we conclude that the defendant has failed

to satisfy the third prong of Golding.

We begin by setting forth the relevant legal principles.

It is well established that the defendant is entitled to

due process rights in a probation violation proceeding.

‘‘Probation revocation proceedings fall within the protections guaranteed by the due process clause of the

fourteenth amendment to the federal constitution. . . .

Probation itself is a conditional liberty and a privilege

that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport

with the basic requirements of due process because

termination of that privilege results in a loss of liberty.’’

(Citation omitted; internal quotation marks omitted.)

State v. Barnes, 116 Conn. App. 76, 79, 974 A.2d 815,

cert. denied, 293 Conn. 925, 980 A.2d 913 (2009).

‘‘Although the due process requirements in a probation

revocation hearing are less demanding than those in a

full criminal proceeding,4

they include the provision of

written notice of the claimed violations to the defendant.’’ (Footnotes added and omitted.) State v. Repetti,

60 Conn. App. 614, 617, 760 A.2d 964, cert. denied, 255

Conn. 923, 763 A.2d 1043 (2000).
The defendant argues that the state did not provide

him with adequate notice of the basis of his violation

of probation when it filed a substitute information six

days prior to the violation of probation hearing. This

court has held, however, that ‘‘[i]t is beyond question

that in a criminal proceeding, the state may change the

factual basis supporting a criminal count prior to trial.

See Practice Book § 36-17.5

If substantive amendments

are permissible prior to trial in a criminal proceeding,

then surely our legislature did not intend to prohibit

them prior to a hearing in a probation revocation proceeding.’’ (Footnote in original.) State v. Outlaw, 60

Conn. App. 515, 526, 760 A.2d 140 (2000), aff’d, 256

Conn. 408, 772 A.2d 1122 (2001). The language of Practice Book § 36-17 requires only that the substitute information be filed before the trial or hearing commences,

which this court interprets broadly. See State v.

Iovanna, 80 Conn. App. 220, 223, 834 A.2d 742 (2003)

(defendant received adequate notice of grounds on

which he was found to have violated probation where

state filed substitute information with additional charge

at beginning of probation hearing); State v. Repetti,

supra, 60 Conn. App. 617 (no due process violation in

probation hearing where state filed substitute information before start of probation hearing and defendant

did not object to substituted charges); see generally

State v. Marsala, 44 Conn. App. 84, 89–90, 688 A.2d 336

(finding no abuse of discretion where court allowed

prosecutor to amend information on day that trial

began), cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

The record reveals that on December 2, 2015, the

state filed a substitute information charging the defendant with violation of probation on the basis of his May

5, 2015 arrest. On that date, the defendant’s counsel

acknowledged that he and the defendant had received

the substituted information. The defendant’s counsel

voiced no objection and did not seek a continuance at

that time. The defendant’s probation revocation hearing

was held on December 8, 2015, six days later. Prior to

the start of the hearing, the defendant’s counsel stated

that he had reviewed the substituted information with

the defendant. It is undisputed that the substitute information was filed prior to the start of the defendant’s

probation hearing, and the defendant provides no case

law, nor do we find any such authority, to support the

proposition that six days does not constitute fair notice.

Furthermore, the condition of the defendant’s probation that he was charged with violating was that he

would not violate any criminal law, and the arrest warrant application, dated July 30, 2015, specified that condition as the basis of the violation. The state did not

alter the underlying condition that it alleged the defendant had violated, that he not violate any criminal law,

when it filed the substitute information on December

2, 2015. From the warrant and the substitute informa-
tion, the defendant was aware that he was accused of

violating the criminal laws of this state because of his

recent arrests. This court has stated that ‘‘[w]here criminal activity forms the basis for the revocation of probation, the law imputes to the probationer the knowledge

that further criminal transgressions will result in a condition violation and the due process notice requirement

is similarly met.’’ (Internal quotation marks omitted.)

State v. Hooks, 80 Conn. App. 75, 80, 832 A.2d 690, cert.

denied, 267 Conn. 908, 840 A.2d 1171 (2003). At the

conclusion of the violation of probation hearing, the

court found that the state had satisfied its burden of

proving that the defendant violated this general condition: ‘‘I find . . . by a fair preponderance of the evidence that [the defendant] engaged in criminal behavior

while he was on probation. So, he’s in violation of

his probation.’’

After a careful review of the record, we conclude that

the defendant received adequate notice of the ground

on which he ultimately was found to have violated his

probation. See State v. Iovanna, supra, 80 Conn. App.

223. Accordingly, the defendant’s claim fails Golding’s

third prong because he has failed to demonstrate that

a constitutional violation exists and deprived him of

due process during his probation revocation hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Although the various informations and warrants occasionally refer to

the defendant by the last name ‘‘Polek,’’ his legal name is Andaz, and the

trial court granted his motion to correct the record to reflect that his legal

name is Andaz on September 29, 2015.

2 General Statutes § 53a-32 (a) provides in relevant part: ‘‘Whenever a

probation officer has probable cause to believe that a person has violated

a condition of such person’s probation, such probation officer may notify

any police officer that such person has, in such officer’s judgment, violated

the conditions of such person’s probation and such notice shall be sufficient

warrant for the police officer to arrest such person and return such person

to the custody of the court or to any suitable detention facility designated

by the court. . . .’’

3 See State v. Carter, 84 Conn. App. 263, 273, 853 A.2d 565 (‘‘[w]here the

defendant can demonstrate neither unfair surprise nor prejudice, he cannot

claim an infringement of his constitutional right to fair notice of the crimes

with which he is charged’’ [internal quotation marks omitted]), cert. denied,

271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct.

2529, 161 L. Ed. 2d 1120 (2005).

4 This court has recently discussed the due process requirements for a

probation hearing in State v. Tucker, supra, 179 Conn. App. 280, stating:

‘‘[T]he minimum due process requirements for revocation of [probation]

include written notice of the claimed [probation] violation, disclosure to

the [probationer] of the evidence against him, the opportunity to be heard

in person and to present witnesses and documentary evidence, the right to

confront and cross-examine adverse witnesses in most instances, a neutral

hearing body, and a written statement as to the evidence for and reasons

for [probation] violation. . . . Despite that panoply of requirements, a probation revocation hearing does not require all of the procedural components

associated with an adversarial criminal proceeding.’’ (Internal quotation

marks omitted.)

5

‘‘Practice Book § 36-17 provides: ‘‘ ‘If the trial has not commenced, the

prosecuting authority may amend the information, or add additional counts,

or file a substitute information. Upon motion of the defendant, the judicial

authority, in its discretion, may strike the amendment or added counts or

substitute information, if the trial or the cause would be unduly delayed or
the substantive rights of the defendant would be prejudiced.’ ’’ State v.

Outlaw, supra, 60 Conn. App. 526 n.14.