State v. Rodriguez (Concurrence)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. RODRIGUEZ CONCURRENCE LAVINE, J., concurring. I write separately because I believe the case of 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), while controlling, deserves to be reconsidered by our Supreme Court. In Green, the defendant s intention to sexually assault a woman was thwarted because the zipper on her pants broke. Id., 260. Our Supreme Court concluded that the jury could have convicted the defendant under either prong of the attempt statute: the attendant circumstances prong of General Statutes § 53a-49 (a) (1) or the substantial step prong of § 53a-49 (a) (2). Id., 276 77. It is my view that the attendant circumstances prong was not intended to apply to a situation in which unforeseen subsequent circumstances frustrate someone from achieving a criminal objective. Rather, the attendant circumstances prong was intended to abolish any defense of legal or factual impossibility. See Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-49 (a) (1) (West 2007), commission comment ( [t]his section sweeps aside any consideration of the defense of impossibility ); see also State v. Cox, 293 Conn 234, 241 46, 977 A.2d 614 (2009) (differentiating § 53a-49 [a] [1] and [a] [2]); People v. Dlugash, 41 N.Y.2d 725, 726 27, 732 37, 363 N.E.2d 1155, 395 N.Y.S. 419 (1977) (discussing attendant circumstances under New York statute; section applied to defendant who shot dead body believing it to be alive); 4 C. Torcia, Wharton s Criminal Law (15th Ed. 1996) § 697, pp. 626 32; 21 Am. Jur. 2d 267 68, Impossibility as defense § 156 (2008). I question whether the attendant circumstances provision ought to apply when an assailant is prevented from stabbing someone solely because a police officer shoots him. Accordingly, I respectfully concur.
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