State v. Yury G.

Citations

• 207 Conn. App. 686

Syllabus

Convicted, after a jury trial, of the crime of disorderly conduct stemming from a physical altercation with her husband, the defendant appealed to this court. She claimed, inter alia, that the trial court improperly determined that her request to instruct the jury on the infraction of creating a public disturbance as a lesser included offense failed to satisfy the test set forth in State v. Whistnant (179 Conn. 576). Held: 1. The trial court properly denied the defendant's request for an instruction on the lesser included offense of creating a public disturbance; the defendant's request failed under the fourth prong of the Whistnant test, as the evidence showing that the defendant intentionally hit her husband with her knee would have supported a conviction under either the greater or the lesser offense and, thus, the jury could not, as a matter of law, have found the defendant guilty only of creating a public distur- bance and not guilty of disorderly conduct. 2. The defendant could not prevail on her unpreserved claim that the statu- tory scheme that gave the prosecutor complete discretion in choosing whether to charge her with an infraction or with a misdemeanor that contained identical elements to the infraction violated her state and federal constitutional rights to due process of law and equal protection under the law; our Supreme Court held in State v. Harden (175 Conn. 315) that a trial court should not give a lesser included offense instruction when both the greater and lesser offenses contain only identical ele- ments, and the United States Supreme Court held in United States v. Batchelder (442 U.S. 114) that, if there is no discrimination against any particular class of defendants when deciding under what statute to charge a defendant, there is no violation under the federal constitution for two statutes with different penalties to punish the same conduct, thus, the defendant failed to establish her claimed constitutional viola- tions and her claim was no