STATE v. ZACHARY JAY ELSON, SC 18737

Judicial District of Danbury

 Criminal; Whether Defendant's Unpreserved Constitutional Claim was Reviewable Under State v. Golding, 213 Conn. 233 (1989).  The defendant was convicted of assault and unlawful restraint.  On appeal, he claimed that the trial court violated his due process right to a fair trial by considering improper factors at his sentencing.  The defendant did not raise this claim before the trial court.  In his main appellate brief, the defendant analyzed his claim as being constitutional in nature, but he did not request any extraordinary review until his reply brief, where he requested review pursuant to State v. Golding, 213 Conn. 233 (1989), which permits review of unpreserved constitutional claims if all of its requirements are met.  The Appellate Court (125 Conn. App. 328) rejected the defendant's position that he was not required to seek extraordinary review due to the difficulty of objecting and the absence of a remedy reasonably available to him at trial.  It also saw no merit in his argument that review was warranted because Supreme Court decisions have held that a criminal defendant does not need to invoke Golding to obtain review of certain unpreserved constitutional claims.  Noting that the Supreme Court decisions cited by the defendant involved sufficiency of the evidence and prosecutorial impropriety claims, the Appellate Court declined to create an additional exception to Golding, as that would be inconsistent with its obligation to follow Supreme Court precedent.  The Appellate Court also rejected the defendant's argument that he was entitled to Golding review because, under State v. Wright, 114 Conn. App. 448 (2009), such review is warranted where a party affirmatively demonstrates that his claim is indeed a violation of a fundamental constitutional right.  It ruled that Wright essentially eviscerated the requirement that a defendant request Golding review in an affirmative manner in his main brief and, accordingly, overruled Wright to the extent that it addressed that requirement.  The Appellate Court held that a party must make an affirmative request for Golding review and that the request must be "nothing less than an explicit assertion and analysis in [the] party's main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude."  Finding that the defendant had not affirmatively requested, in his main brief, review under the principles of Golding, the Appellate Court concluded that his claim was not reviewable and affirmed his convictions.   The Supreme Court will review the Appellate Court's determination that the defendant's claim could not be reviewed under Golding.