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STATE OF CONNECTICUT v. JOSE

MORENO-HERNANDEZ

(SC 18919)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.

Argued March 17—officially released June 30, 2015

Richard E. Condon, Jr., senior assistant public

defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Stacey Haupt Miranda, senior

assistant state’s attorney, for the appellee (state).
Opinion

ZARELLA, J. The present appeal requires us to define

the scope of liability under our criminal attempt statute,

General Statutes § 53a-49. Section 53a-49 (a) makes it

a crime for an individual, acting with the intent required

for the commission of the predicate crime, to intentionally engage in conduct that would constitute the crime

if the attendant circumstances were as he believed them

to be; General Statutes § 53a-49 (a) (1) (attendant circumstances subdivision); or to intentionally take a substantial step in a course of conduct planned to culminate

in the commission of the crime. General Statutes § 53a49 (a) (2) (substantial step subdivision). In the present

case, the defendant, Jose Moreno-Hernandez, was

charged with, inter alia, attempt to commit murder

under only the attendant circumstances subdivision,

and a jury found him guilty as charged. On appeal, the

defendant claims that the trial court incorrectly denied

his motion for a judgment of acquittal because the state

failed to prove beyond a reasonable doubt that he had

attempted to commit murder under the attendant circumstances subdivision. The defendant concedes that

the jury would have found him guilty under the substantial step subdivision if he had been charged under that

subdivision but claims that the attendant circumstances

subdivision is simply inapplicable in the present case.

We disagree and, accordingly, affirm the judgment of

the trial court.

The jury reasonably could have found the following

facts. In the early morning hours of March 27, 2009, the

victim1

finished her shift at the Temple Grill, a restaurant in the city of New Haven, where she worked as a

waitress. As she was leaving, the defendant, who

worked at the restaurant as a dishwasher, asked her

for a ride home, and the victim agreed. The defendant

gave the victim directions to where he lived, but, after

forty-five minutes of driving, the victim was lost and

they still had not yet arrived at the defendant’s home.

The victim eventually pulled over, apologized, and

asked the defendant to get out of her car. At that point,

the defendant began making sexual advances toward

the victim, and, when she resisted, he struck her in the

face. The defendant repeatedly sexually assaulted the

victim inside the car and physically assaulted her when

she resisted. The victim attempted to call 911 and

escape multiple times, but the defendant stopped her

each time.

After assaulting the victim inside her car, the defendant drove the carto a public park and forced the victim

to a remote area in the woods. There, the defendant

continued to sexually and physically assault the victim.

At a certain point, the defendant told the victim that

he was going to kill her, and he struck her with his fist

and a tree branch, kicked her with his boots, and twisted

her head and neck. The victim stopped reacting to the
defendant’s blows in an attempt to lead him to believe

that she was dead. Finally, after the defendant stopped

striking the victim and left, she ran from the park to a

nearby house and called the police. The police apprehended the defendant within hours, and he confessed

to physically and sexually assaulting the victim. The

defendant told police that he had tried to kill the victim

because he thought she would report the sexual assault

and that, when he left the park, he thought that he had

killed her.

The defendant was charged with five counts of first

degree sexual assault in violation of General Statutes

§ 53a-70 (a) (1), one count of first degree kidnapping

in violation of General Statutes § 53a-92 (a) (2) (A), one

count of first degree assault in violation of General

Statutes § 53a-59 (a) (1), and one count of attempt to

commit murder in violation of General Statutes §§ 53a54a (a) and 53a-49 (a) (1). While the state was proceeding with its case against the defendant, the trial court

held a charging conference with the parties at which

it raised sua sponte the question of whether the state

had presented sufficient evidence to permit a reasonable jury to find the defendant guilty of attempt to

commit murder in light of the fact that the defendant

was charged under the attendant circumstances subdivision and not the substantial step subdivision, as is far

more common. That same day, the state moved to

amend the long form information pursuant to Practice

Book § 36-18 to charge the defendant with attempt to

commit murder in violation of the substantial step subdivision instead of the attendant circumstances subdivision. The trial court denied the state’s motion,reasoning

that the state should not be allowed to amend the long

form information when it would not have been aware

of the potential deficiency if the court had not raised

the issue sua sponte.

When the state rested its case, the defense rested

without presenting any evidence and moved for a judgment of acquittal with respect to the attempt to commit

murder charge, which the trial court denied. With

respect to that charge, the trial court instructed the jury

only on the attendant circumstances subdivision. The

jury found the defendant guilty on all counts, and the

trial court sentenced the defendant to a total effective

term of eighty years incarceration. At the sentencing

hearing, the trial court also denied the defendant’s postconviction motion for a new trial with respect to the

sexual assault, assault, and kidnapping charges, and his

motion for judgment of acquittal notwithstanding the

verdict with respect to the attempted murder charge.

This appeal followed.

On appeal, the defendant claims that the attendant

circumstances subdivision applies only to situations in

which it is impossible for an individual to commit the

intended crime due to a mistake of fact.2 That was
not the situation in the present case, according to the

defendant, because he could have killed the victim; his

actions simply fell short of causing her death. In making

this argument, the defendant relies primarily on our

decisions in State v. Gonzalez, 222 Conn. 718, 609 A.2d

1003 (1992), and State v. Cox, 293 Conn. 234, 977 A.2d

614 (2009), in which we interpreted the differences

between the attendant circumstances and substantial

step subdivisions as ‘‘significant.’’ Id., 241.

The state concedes that, were we to interpret the

attendant circumstances subdivision as requiring evidence of impossibility, then a reasonable jury could not

have found the defendant guilty under that subdivision.

The state claims, however, that the attendant circumstances subdivision is not limited only to impossibility

situations, but also is satisfied when an individual would

have completed the intended crime but for certain

intervening circumstances. Applying this interpretation

to the present case, the state argues that it presented

sufficient evidence to prove the defendant’s guilt

beyond a reasonable doubt because the defendant

believed that he had done all that was necessary to kill

the victim but did not actually do so because of an

intervening circumstance, namely, that the victim pretended to be dead.3

In making this argument, the state

relies on the concurring opinion in Gonzalez, as well

as our decision in State v. Green, 194 Conn. 258, 480

A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct.

964, 83 L. Ed. 2d 969 (1985), both of which indicated

that certain conduct can satisfy both the attendant circumstances and substantial step subdivisions. See State

v. Gonzalez, supra, 222 Conn. 729–30 (Peters, C. J.,

concurring in the judgment); State v. Green, supra, 275.

We conclude that the attendant circumstances subdivision is not limited only to impossibility situations and

that, in the present case, the state presented sufficient

evidence to permit a reasonable jury to find the defendant guilty of attempt to commit murder under the

attendant circumstances subdivision.4 Accordingly, we

affirm the judgment of the trial court.

‘‘In reviewing a sufficiency of the evidence claim, we

apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . On appeal, we do not

ask whether there is a reasonable view of the evidence

that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable

view of the evidence that supports the jury’s verdict of

guilty.’’(Internal quotation marks omitted.) State v.Cox,

supra, 293 Conn. 245.

To resolve the defendant’s sufficiency of evidence
claim, we must interpret § 53a-49 (a). ‘‘Issues of statutory construction raise questions of law, over which

we exercise plenary review.’’ (Internal quotation marks

omitted.) State v. Brown, 310 Conn. 693, 702, 80A.3d 878

(2013). ‘‘When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In seeking to determine

that meaning, General Statutes § 1-2z directs us first to

consider the text of the statute itself and its relationship

to other statutes. If, after examining such text and considering such relationship, the meaning of such text is

plain and unambiguous and does not yield absurd or

unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test

to determine ambiguity is whether the statute, when

read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance to

the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . .’’ (Internal quotation marks omitted.) State v. Buckland, 313 Conn. 205, 224, 96 A.3d

1163 (2014), cert. denied, U.S. , 135 S. Ct. 992,

190 L. Ed. 2d 837 (2015).

‘‘In interpreting the [statutory] language . . . however, we do not write on a clean slate, but are bound

by our previous judicial interpretations of the language

and the purpose of the statute.’’ Kasica v. Columbia,

309 Conn. 85, 93–94, 70 A.3d 1 (2013); see also Hummel

v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d

657 (2007) (holding that § 1-2z does not require this

court to overrule prior judicial interpretations of statutory schemes, even if not based on plain meaning rule).

Accordingly, we begin our analysis by examining the

text of § 53a-49 (a) and our prior decisions interpreting it.

Section 53a-49 (a) provides: ‘‘A person is guilty of an

attempt to commit a crime if, acting with the kind of

mental state required for commission of the crime, he:

(1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he

believes them to be; or (2) intentionally does or omits

to do anything which, under the circumstances as he

believes them to be, is an act or omission constituting

a substantial step in a course of conduct planned to

culminate in his commission of the crime.’’ In order to

determine whether the attendant circumstances subdivision applies only in impossibility situations, as the

defendant claims, we turn next to our prior decisions

interpreting this statute.

A review of our case law reveals that we have decisions that implicitly contradict one another with respect

to whether the attendant circumstances subdivision is
limited to impossibility situations. In Green, a case in

which the defendant could have completed the intended

crime, we determined that the jury could have found

the defendant guilty under the attendant circumstances

subdivision. See State v. Green, supra, 194 Conn. 275.

In Gonzalez, another case in which the defendant could

have completed the intended crime, we reached the

opposite conclusion, holding that the trial court should

not have instructed the jury on the attendant circumstances subdivision. See State v. Gonzalez, supra, 222

Conn. 724–25. The court was divided in Gonzalez, and

Chief Justice Peters wrote a concurring opinion, in

which she relied on Green in stating that the attendant

circumstances subdivision applied to the defendant’s

conduct, even though it was not an impossibility situation, because the defendant was mistaken about the

attendant circumstances. Id., 729–30 (Peters, C. J., concurring in the judgment). The majority in Gonzalez did

not respond to Chief Justice Peters’ critique or address

Green. Since Green and Gonzalez were decided, we

have relied on Gonzalez at least once, in Cox. See State

v. Cox, supra, 293 Conn. 241–42.

The Appellate Court likewise also has issued decisions that implicitly conflict with one another regarding

whether the attendant circumstances subdivision

applies only to impossibility situations. Compare State

v. Rodriguez, 139 Conn. App. 594, 616–17, 56 A.3d 980

(2012) (upholding conviction for attempt to commit

first degree assault under attendant circumstances subdivision when police prevented defendant from stabbing victim by shooting defendant), cert. denied, 308

Conn. 902, 60 A.3d 286 (2013), State v. Williams, 44

Conn. App. 231, 238, 689 A.2d 484 (there was sufficient

evidence for finding of guilt under attendant circumstances subdivision because jurors ‘‘could have reasonably found that the defendant struck the victim in the

head with a baseball bat a sufficient number of times

to believe that she would die’’), cert. denied, 240 Conn.

918, 692 A.2d 815 (1997), and State v. Gilchrist, 25 Conn.

App. 104, 110–11, 593 A.2d 507 (there was sufficient

evidence for finding of guilt under attendant circumstances subdivision when defendant shot victim in

mouth but victim survived), cert. denied, 220 Conn. 905,

593 A.2d 970 (1991), with State v. Carter, 141 Conn.

App. 377, 385, 61 A.3d 1103 (attendant circumstances

subdivision requires proof that defendant’s conduct

‘‘progressed so far as to constitute the final step in a

course of conduct planned to culminate in the commission of the crime’’), cert. granted, 308 Conn. 943, 66

A.3d 886 (2013), and State v. Rodriguez, supra, 617–18

(Lavine, J., concurring) (interpreting attendant circumstances subdivision as applying only to impossibility

situations and urging this court to reconsider Green).

Not only do we have conflicting decisions, but those

decisions, namely Green and Gonzalez, include little

substantive analysis to support their conclusions. For
instance, in Green, the court did not expressly decide

that the attendant circumstances subdivision applies

beyond impossibility situations but, rather, implicitly

reached that conclusion by determining that there was

sufficient evidence to sustain the defendant’s conviction under the attendant circumstances subdivision

when the defendant clearly could have completed the

intended crime. See State v. Green, supra, 194 Conn.

271, 274–77. In Gonzalez, the court expressly addressed

the scope of the attendant circumstances subdivision;

State v. Gonzalez, supra, 222 Conn. 724; but, as the

concurrence in Gonzalez noted, did not cite to any

authority to support its conclusion that the attendant

circumstances subdivision applies only when a perpetrator fails to accomplish the intended crime due to a

mistake of fact that ‘‘render[ed] the commission of the

crime impossible.’’ Id.; see id., 729 (Peters, C. J., concurring in the judgment). Moreover, the majority in Gonzalez failed to acknowledge the fact that it was implicitly

contradicting Green, let alone explain why it was choosing to do so. Thus, neither of these cases provides us

with a sufficient analytical framework to resolve the

present case but, rather, offers only conclusions without explanations. We decline to blindly adopt either of

those conclusions and instead undertake a full review

of the attendant circumstances subdivision to determine its scope.

We begin our review by examining the text of the

attendant circumstances subdivision and conclude that

it is susceptible to more than one reasonable interpretation. On the one hand, the text suggests that the subdivision is limited to impossibility situations insofar as it

refers to the attendant circumstances, or the lack

thereof, as the reason why the intended crime was not

completed, instead of the actor’s conduct. If the attendant circumstances necessary to commit the crime

were not present, as the language of the attendant circumstances subdivision requires, then it is reasonable

to conclude that it was impossible to commit the

intended crime. On the other hand, the attendant circumstances subdivision does not include the term

‘‘impossible’’ and does not expressly limit its application

to impossibility situations. Thus, the statute also can

reasonably be read as applying to any situation in which

an individual engages in conduct that ‘‘would constitute

the crime if attendant circumstances were as he

believes them to be’’; General Statutes § 53a-49 (a) (1);

regardless of whether it was possible for the individual

to have completed the intended crime. The text of the

attendant circumstances subdivision alone therefore is

insufficient to resolve the issue presented. Accordingly,

we turn to extratextual sources relating to the statute.

The extratextual sources that resolve the issue presented are the commentary to § 53a-49 and the commentary to the criminal attempt provision of the Model

Penal Code on which § 53a-49 was based. In 1969, the
legislature enacted § 53a-49 as part of a revision to this

state’s substantive criminal law, as recommended by

the Commission to Revise the Criminal Statutes (commission). See Public Acts 1969, No. 828, § 50; see also

State v. Desimone, 241 Conn. 439, 456, 696 A.2d 1235

(1997). In the commission’s comments to the Penal

Code, the commission stated that § 53a-49 ‘‘is based, in

part, [on] the Model Penal Code.’’ Commission to Revise

the Criminal Statutes, Penal Code Comments, Conn.

Gen. Stat. Ann. § 53a-49 (West 2012) comment, p. 76.

The Model Penal Code provision on which § 53a-49 is

based is § 5.01 (1), as the language of the attendant

circumstances and substantial step subdivisions of

§ 53a-49 (a) is almost identical to that of the attendant

circumstances and substantial step provisions in § 5.01

(1).5 Compare General Statutes § 53a-49 (a) (1) and (2),

with Model Penal Code § 5.01 (1) (a) and (c).

Although neither the commission nor the legislature

directly addressed the issue of whether the attendant

circumstances subdivision is limited to impossibility

situations, the drafters of the Model Penal Code did. In

their comments to § 5.01, the drafters first made clear

that § 5.01 (1) (a), the analogue to the attendant circumstances subdivision of § 53a-49 (a) (1), applies in impossibility situations. See generally 1 A.L.I., Model Penal

Code and Commentaries (1985) § 5.01, comment (3),

pp. 307–20 (Model Penal Code and Commentaries). The

drafters also noted, however, that, ‘‘when [an] actor has

done all that he believes to be necessary to commit

the offense in question, he has committed an attempt’’

under § 5.01 (1) (a). Id., comment (4), p. 321. In providing examples of such scenarios, the drafters stated that

§ 5.01 (1) (a) covers ‘‘cases where the contemplated

victim is fired upon but the shots miss or the victim

is saved by a miraculous operation.’’ (Emphasis

added.) Id. In both of these examples, the perpetrator

failed to complete the intended crime not because it

was impossible to do so, but because his actions were

insufficient to do so or because some intervening circumstance prevented him from doing so. Thus, there

is no question that the drafters of the Model Penal Code

intended § 5.01 (1) (a) to apply not only to impossibility

situations, but also to situations in which a perpetrator

fails to complete the intended crime for some reason

other than impossibility.

The comments to § 5.01 (1) of the Model Penal Code

are consistent with the broad purpose of § 53a-49 of

penalizing individuals who have demonstrated that they

pose a threat to society, albeit without completing the

intended crime. We previously have stated that the

drafters of the Model Penal Code ‘‘belie[ved] that the

proper concern of the law of attempts is the dangerousness of the actor, as a person manifesting a firm disposition to commit a crime, not the dangerousness of his

conduct.’’ (Internal quotation marks omitted.) State v.

Sorabella, 277 Conn. 155, 181 n.29, 891 A.2d 897, cert.
denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36

(2006); accord United States v. Ivic, 700 F.2d 51, 66 (2d

Cir. 1983); see also Model Penal Code and Commentaries, supra, § 5.01, comment (3) (b), pp. 315–16 (‘‘[t]he

law of attempts . . . should be concerned with manifestations of dangerous character as well as with preventative arrests’’). Surely, a person who, with the intent

to commit a crime, goes so far as to ‘‘[i]ntentionally

[engage] in conduct which would constitute the crime

if attendant circumstances were as he believes them to

be’’; (emphasis added) General Statutes § 53a-49 (a)

(1); has demonstrated his dangerousness to society

because he has taken every step necessary to complete

the crime but simply has been thwarted for one reason

or another. If anything, an individual generally will have

demonstrated his dangerousness to a greater extent by

engaging in such conduct in situations in which it was

possible to have completed the intended crime than in

situations in which it was not. Cf. 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 11.5 (a), pp. 240–41

(discussing inherent impossibility situations in which

perpetrator employs means so ineffective to attempt

intended crime, his conduct is harmless). Thus, interpreting the attendant circumstances subdivision as

applying only to impossibility situations would contravene the purpose of § 53a-49 because it would allow

individuals who have demonstrated their dangerousness to society by attempting to commit a crime that

was possible to complete to nevertheless escape criminal liability.

In sum, the legislature based the attendant circumstances subdivision of § 53a-49 (a) (1) on § 5.01 (1) (a)

of the Model Penal Code, and the drafters of the Model

Penal Code made clear that § 5.01 (1) (a) is not limited

to impossibility situations. Moreover, interpreting that

subdivision as applying beyond impossibility situations

is consistent with the overarching purpose of § 53a-49.

Accordingly, we conclude that the attendant circumstances subdivision is not limited to impossibility situations.

Applying this interpretation to the present case, and

construing the evidence in the light most favorable to

sustaining the guilty verdict, we conclude that the state

presented sufficient evidence for a reasonable jury to

find beyond a reasonable doubt that the defendant was

guilty of attempt to commit murderin violation of § 53a54a (a) and the attendant circumstances subdivision of

§ 53a-49 (a) (1). The state presented evidence that the

defendant admitted to the police that he brutally

assaulted the victim with the intent to kill her and that

he believed that he had killed her. It is reasonable to

view this evidence as supporting the conclusion that

the defendant acted with the requisite intent to commit

murder under § 53a-54a (a) and that he intentionally

engaged in conduct that would have constituted murder

if the attendant circumstances had been as he believed
them to be, namely, that the victim was actually dead,

rather than pretending to be dead. Thus, we conclude

that the state presented sufficient evidence and, accordingly, uphold the defendant’s conviction of attempt to

commit murder.

The defendant argues, contrary to our conclusion,

that the attendant circumstances subdivision applies

only to impossibility situations for a number of reasons,

none of which we find persuasive. First, the defendant

argues that, in Gonzalez and Cox, we unequivocally

established that the attendant circumstances subdivision is limited to impossibility situations and that those

decisions control in the present case.

With respect to Gonzalez, we agree that this court

decided that the attendant circumstances subdivision

applies only to impossibility situations. See State v.

Gonzalez, supra, 222 Conn. 724–25. We conclude that

this issue warrants reconsideration, however, because,

as we previously discussed, Gonzalez provided little

authority to support its conclusion and failed to

acknowledge that we previously had drawn the opposite conclusion, albeit implicitly, in Green. Indeed, the

court in Gonzalez did not cite to any authority to support its conclusion that the attendant circumstances

subdivision applies only when a perpetrator fails to

complete a crime ‘‘solely because the ‘attendant circumstances’ were not as the perpetrator believed them to

be, rendering the commission of the crime impossible.’’

Id. The court in Gonzalez cited to a 1971 reference

manual to the Penal Code that provides that the attendant circumstances subdivision is ‘‘directed at’’ impossibility situations and the substantial step subdivision is

‘‘directed at’’ situations in which the intended crime is

not completed for some reason otherthan impossibility.

D. Borden, ‘‘Inchoate Offenses,’’ in Judicial Department,

Reference Manual: Connecticut Penal Code Title 53a

(1971) § 5, pp. 5-5, 5-6; see State v. Gonzalez, supra,

724–25. This reference manual, however, provides no

authority for its interpretation of § 53a-49, and it contradicts the comments to § 5.01 (1) of the Model Penal

Code, the provision on which § 53a-49 (a) was based.

Thus, we are convinced that Gonzalez was incorrect

insofar as it determined that the attendant circumstances subdivision is limited to impossibility situations. We therefore overrule Gonzalez with respect to

that determination.

With respect to Cox, the defendant incorrectly relies

on that decision because the court’s holding in that

case did not turn on whether it was possible for the

defendant to have committed the intended crime. In

Cox, the defendant, Willie Cox, was seated in the backseat of a car fleeing a bank robbery when he raised his

arms ‘‘aggressive[ly]’’ toward a police officer. (Internal

quotation marks omitted.) State v. Cox, supra, 293 Conn.

237. Cox was convicted of attempt to commit assault
of a peace officer after the trial court instructed the

jury only on the attendant circumstances subdivision.

Id., 239–40. On appeal, this court reversed the judgment

of conviction on the basis that the state had failed to

introduce sufficient evidence to prove that Cox had

made a mistake of fact. Id., 246–47. Although the state

had introduced evidence that Cox had been in possession of a gun, it failed to establish that the gun had

been loaded or in working condition, or that Cox even

had attempted to use it. Id., 246.

Cox therefore is not inconsistent with our holding

in the present case. In Cox, the court interpreted the

attendant circumstances subdivision as requiring evidence that the defendant was mistaken about certain

attendant circumstances surrounding the alleged

attempt. See id. We agree with that interpretation, and,

in the present case, the defendant satisfies that standard

because he mistakenly believed that his actions were

sufficient to kill the victim. In Cox, the court quoted

Gonzalez for the proposition that the attendant circumstances subdivision is limited to situations of impossibility but did not rely on that principle in reaching its

holding. Id., 241–42. Likewise, the court’s characterization of the differences between the attendant circumstances and substantial step subdivisions as ‘‘significant’’ was immaterial to its holding and was unsupported, beyond a citation to Gonzalez. Id., 241. Thus,

Cox provides no additional support for the defendant’s

position, and we overrule Cox only to the extent that

it relied on Gonzalez in reaching its conclusion.

In addition to relying on Gonzalez and Cox, the defendant also relies on two decisions of New Jersey’s intermediate appellate court, namely, State v. Condon, 391

N.J. Super. 609, 615, 919 A.2d 178 (App. Div.), cert.

denied, 192 N.J. 74, 926 A.2d 857 (2007), and State v.

Kornberger, 419 N.J. Super. 295, 302, 16 A.3d 1107 (App.

Div.), cert. denied, 208 N.J. 368, 29 A.3d 741 (2011).

New Jersey’s criminal attempt statute also is based on

§ 5.01 of the Model Penal Code, and, in Condon and

Kornberger, the Appellate Division of the New Jersey

Superior Court interpreted a provision that is identical

in all material respects to the attendant circumstances

subdivision of § 53a-49 (a) (1) as requiring an individual

to have ‘‘complete[d] an ‘impossible’ crime’’ rather than

merely to have taken a substantial step toward completing the intended crime. State v. Kornberger, supra, 302,

citing State v. Condon, supra, 617. These cases do not

support the defendant’s position in the present case

because they distinguished the attendant circumstances

subdivision from the substantial step subdivision on the

basis of the degree to which each requires the intended

crime to have been completed, not on the basis of

whetherit was possible to complete the intended crime.

Finally, the defendant claims that we must interpret

the attendant circumstances subdivision as applying
only to impossibility situations because to interpret that

subdivision otherwise would render it superfluous. See,

e.g., Lopa v. Brinker International, Inc., 296 Conn.

426, 433, 994 A.2d 1265 (2010) (‘‘[a statute] must be

construed, if possible, such that no clause, sentence or

word shall be superfluous, void or insignificant’’ [internal quotation marks omitted]). The attendant circumstances subdivision would be superfluous, according

to the defendant, insofar as anyone who ‘‘engages in

conduct which would constitute the crime if attendant

circumstances were as he believes them to be’’; General

Statutes § 53a-49 (a) (1); would necessarily have taken

a ‘‘substantial step in a course of conduct planned to

culminate in his commission of the crime.’’ General

Statutes § 53a-49 (a) (2). The state concedes that, under

its interpretation of the statute, the attendant circumstances subdivision always would be subsumed by the

substantial step subdivision. The implication of the

defendant’s argument is that we should read the attendant circumstances subdivision as applying only to

impossibility situations, and the substantial step subdivision as applying only when an individual fails to complete the intended crime for some reason other than

impossibility, as the court did in Gonzalez; see State v.

Gonzalez, supra, 222 Conn. 724–25; so that the two

subdivisions serve distinct purposes.

Although the substantial step subdivision may subsume the attendant circumstances subdivision, the two

subdivisions are not coextensive. The substantial step

subdivision criminalizes certain conduct that would fall

short of violating the attendant circumstances subdivision. That is, the substantial step subdivision covers

situations in which an individual has not engaged in

conduct that would constitute the crime if attendant

circumstances were as he believed them to be, but,

rather, only has taken a substantial step toward committing the crime that is strongly corroborative of his criminal intent. See Model Penal Code and Commentaries,

supra, § 5.01, comment (1), p. 299. For instance, a pickpocket who reaches into an empty pocket would be

guilty of attempt to commit larceny under both subdivisions; see id., comment (3) (c), pp. 317–18; but a pickpocket who is apprehended immediately before reaching into the empty pocket could be found guilty under

only the substantial step subdivision and not the attendant circumstances subdivision. Thus, the distinction

between the two subdivisions is the degree of completeness each requires in the course of an actor’s conduct.

The fact that the substantial step subdivision subsumes

the attendant circumstances subdivision most likely

was an intentional effort by the drafters of the Model

Penal Code to ensure the elimination of the impossibility defense by covering every possible scenario in which

it could arise.

Nevertheless, the defendant’s proposed solution of

distinguishing the two subdivisions from one another
by interpreting the attendant circumstances subdivision

as applying only to impossibility situations and the substantial step subdivision as not applying to impossibility

situations belies the language of § 53a-49 (a) and the

commentary thereto. See General Statutes § 53a-49 (a);

Commission to Revise the Criminal Statutes, supra,

comment, p. 76. The legislature intended both subdivisions to eliminate the defense of impossibility. Indeed,

both subdivisions include language that makes an

actor’s guilt dependent on his subjective beliefs, which

prevents a defendant from escaping liability by claiming

that it was objectively impossible to commit the

intended crime. Compare General Statutes § 53a-49 (a)

(1) (‘‘if attendant circumstances were as he believes

them to be’’), with General Statutes § 53a-49 (a) (2)

(‘‘under the circumstances as he believes them to be’’).

The commission’s comment to § 53a-49 makes clear

that the legislature intended both subdivisions to have

this effect: ‘‘[Section 53a-49] sweeps aside any consideration of the defense of impossibility . . . . Under subdivisions . . . (1) and (2), the liability of the actor turns

on his purpose, considered in light of his beliefs, and

not on what is actually possible under existing circumstances.’’ (Emphasis added.) Commission to Revise the

Criminal Statutes, supra, comment, p. 76; see also Model

Penal Code and Commentaries, supra, § 5.01, comment

(3) (c), pp. 317–18 (Model Penal Code provisions on

which attendant circumstances and substantial step

subdivisions were based both apply to impossibility situations).

Thus, the language of § 53a-49 (a) and the relevant

commentary disprove the defendant’s claim that one

subdivision applies to impossibility situations and the

other does not. Both subdivisions apply to impossibility

situations, as well as to situations in which it was possible for the perpetrator to have committed the intended

crime. We therefore reject the defendant’s claim that

the attendant circumstances subdivision must be interpreted as being limited to impossibility situations.

The judgment is affirmed.

In this opinion the other justices concurred.

1

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

victims of sexual assault, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

2 For ease of reference, we refer to these scenarios as impossibility situations. For a complete discussion of what constitutes a situation in which

it is impossible to commit a certain crime, see 2 W. LaFave, Substantive

Criminal Law (2d Ed. 2003) § 11.5 (a), pp. 230–41, which distinguishes

between factual, legal and inherent impossibility.

3 Alternatively, the state argues that, if we were to interpret the attendant

circumstances subdivision as requiring evidence of impossibility, then the

defendant’s conviction nevertheless should be upheld under the substantial

step subdivision because the jury necessarily had to find that the requirements of that subdivision were satisfied in order to find the defendant guilty

under the attendant circumstances subdivision. The state further argues

that, even if this court disagrees with the foregoing argument, it should

remand the case for a new trial on the attempt to commit murder charge

because the trial court improperly denied the state’s motion to amend the

long form information to charge the defendant with attempt to commit
murder under the substantial step subdivision.

4 Thus, we need not consider the state’s alternative arguments for upholding the defendant’s conviction or for remanding the case for a new trial on

the attempted murder charge.

5 Comparing the full text of the provisions reveals their similarity. General

Statutes § 53a-49 (a) provides: ‘‘A person is guilty of an attempt to commit

a crime if, acting with the kind of mental state required for commission of

the crime, he: (1) Intentionally engages in conduct which would constitute

the crime if attendant circumstances were as he believes them to be; or (2)

intentionally does or omits to do anything which, under the circumstances

as he believes them to be, is an act or omission constituting a substantial

step in a course of conduct planned to culminate in his commission of

the crime.’’

In comparison, § 5.01 of the Model Penal Code provides in relevant part:

‘‘(1) Definition of Attempt. A person is guilty of an attempt to commit a crime

if, acting with the kind of culpability otherwise required for commission of

the crime, he:

‘‘(a) purposely engages in conduct that would constitute the crime if the

attendant circumstances were as he believes them to be; or

‘‘(b) when causing a particular result is an element of the crime, does or

omits to do anything with the purpose of causing or with the belief that it

will cause such result without further conduct on his part; or

‘‘(c) purposely does or omits to do anything that, under the circumstances

as he believes them to be, is an act or omission constituting a substantial

step in a course of conduct planned to culminate in his commission of

the crime. . . .’’ (Emphasis added.) 1 A.L.I., Model Penal Code and Commentaries (1985) § 5.01 (1), pp. 295–96.

Thus, it is apparent that the legislature, in enacting § 53a-49 (a), essentially

adopted § 5.01 (1) (a) and (c), but not § 5.01 (1) (b). Section 53a-49 (a) (1)

parallels § 5.01 (1) (a), and § 53a-49 (a) (2) parallels § 5.01 (1) (c).