The Connecticut Supreme Court ordered a new trial for a Waterbury man who was convicted of rape after a judge allowed the prosecution — during his trial — to change the date they claimed the crime took place, eliminating his alibi defense.
The court decision by Justice Andrew McDonald said there are circumstances in which there is justification for allowing prosecutors to amend charging documents to change the date on which they claim a crime occured.
But in the rape case, the court said in a unanimous decision, the prosecutors knew two to four weeks prior to trial that the dates in the criminal information were wrong and they should have informed the accused, Bernard J. Peluso, at that point so his defense could react.
Peluso is in prison and can argue for his immediate release. He was convicted of multiple sexual assault and abuse crimes and began serving an 12-year sentence in January 2015. His lawyer, James Sexton, would not discuss the case.
Peluso was accused of abusing the minor daughter of a neighboring family in his apartment at the condominium complex where he and the neighbors lived. Years after the abuse, the victim told a school mate, and Peluso was eventually charged when the allegation reached school administrators and police.
The victim initially told police she was abused in 2010 and 2011. But as long as a month before trial, while preparing with the prosecution, she said the abuse took place years earlier. At trial, she testified it took place when she was in third grade, in 2008 and 2009.
Peluso, who was charged with offenses that took allegedly place in 2010 and 2011, asked for an immediate acquittal. Prosecutors asked the judge to allow them to change the dates on the charging documents they filed with the court at the beginning of jury selection about three weeks earlier. Peluso protested that he had planned a defense based on the fact that he didn’t live in the condominium in 2010 and 2011.
In arguing that the date change was justified and did not interfere with Peluso’s trial rights, the prosecution claimed he knew he was accused of crimes during the period in which he lived in condominium, regardless of the specific year. And they said it is well-established that the memories of children, in particular those who have experienced abuse, can be imprecise.
The trial judge agreed, as did the state Appellate Court. The Supreme Court threw out the conviction and sent the case back to the trial court.
“By focusing their respective good cause analyses principally on (the victim’s) age — and the deficiencies in minor victims’ testimony regarding dates, generally — the state, the trial court and the Appellate Court were distracted from the central question to be addressed,” the Supreme Court said.
“The relevant inquiry is not whether the state had good cause to amend the information at any point in time in light of the minor victim’s age and more specific trial testimony regarding the timing of the alleged abuse,” the court said. “Rather, the relevant inquiry is whether the state had good cause to amend its information after the start of trial, notwithstanding the fact that it had first become aware — two to four weeks before the commencement of trial — that the time frame alleged in its information was inaccurate.”
