11sept mmx-cr14-0675616t
DESCRIPTION
MMX-CR14-0675616TMMX-CR13-0200821TMMX-CV14-54STATE Of CONNECTICUTv_EDWARD F . TAUPIERSUPERIOR COURTJUDICIAL DISTRICT OF MIDDLESEXAT MIDDLETOWN, CONNECTICUTSEPTEMBER II , 2014TRANSCRIPT
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MMX-CR14-0 675616T ; MMX - CR13-0200821T MMX-cv14 - 54
STATE OF CONNECTICUT
STATE OF CONNECTICUT
v.
Em-lARD F . TAUPIER
SUPERIOR COURT
JUDICIAL DISTRICT OF MIDDLESEX
AT MIDDLETOWN , CONNECTICUT
SEPTEMBER 11 , 2014
BEFORE THE HONORABLE DAVID P. GOLD, JUDGE
A P PEA RAN C E S
Representing the State :
ATTORNEY BRENDA HANS As s istant State ' s Attorney One Court Street Middletown , CT 06457
Representing the Defendan t :
ATTORNEY JON L . SCHOENHORN 108 Oak Street Hartford , CT 06106-1514
ATTORNEY ALI SHA C. MATHERS P. O. Box 465 Enfield , CT 06083-0465
ATTORNEY JOHN R. DONOVAN Donovan & Morello 154 West Street CROMWELL , CT 06416
Recorded & Transcribed By : Dana Wilson Court Recording Monitor One Court Street Middle town, CT 06457
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(Proceedings begin at 1 : 02 p . m. )
THE COURT : Let me call Edward Taupier . And
it ' s going to be re - called , but I just want to have
this aspect of it resolved .
(Pause)
THE COURT : All right . So Mr . Taupier was last
before the Court on Monday of this week .
Attorney Hans here on behalf of the state .
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ATTY . HANS : Good afternoon , Your Honor . Brenda
Hans .
THE COURT : Mr . Taupier is represented now by
Attorneys Donovan , Mathers and Schoenhorn . Mr .
Schoenhorn today has filed an appearance only in the
threatening file , but what I want to make clear now
for the record is what the status is of Mr . Taupier ' s
representation on the voyeurism file .
So , Ms . Mathers , what ' s -- I understand an in
lieu of appearance was filed .
ATTY . MATHERS : Yes , Your Honor . An in lieu of
appearance was filed i there was a misunderstanding
between my client and myself regarding the status of
Attorney Donovan . Mr . Taupier would like Mr . Donovan
to proceed as lone counsel on the voyeurism charge .
r will be representing Mr . Taupier strictly in the
divorce . So at this time I believe Attorney Donovan
will be filing his appearance in lieu of mine .
THE COURT : Well , Mr . Donovan , what ' s your
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position on becoming involved again in Mr . Taupier ' s
case on the voyeurism?
ATTY . DONOVAN : I ' m agreeing to remain as
counsel in that file .
THE COURT : And Mr . Jelly still of counsel in
that case as well?
ATTY . DONOVAN : Well , he was -- I ' m just
wondering , and I ' m inquiring of the clerk , if Ms .
Mathers ' appearance is withdrawn do I have to refile
an appearance?
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THE CLERK : It would probably be much cleaner if
you did , sir , at this point .
ATTY . DONOVAN : Then I ' m more than happy --
THE COURT : Why?
THE CLERK : Because she filed in lieu of both
Jefferson Jelly and Attorney Donovan , so hers is the
only one of record at this point . So particularly
with all this controversy about it , it would
THE COURT : Is Mr . Jelly filing -- then is Mr .
Jelly filing --
ATTY . DONOVAN: I ' m assuming he will .
THE COURT : Well , if that -- if Ms . Mathers '
appearance in lieu of is recognized then Mr . Jelly ' s
out .
ATTY . DONOVAN : That ' s correct. And I will
inform him of the proceedings today .
THE COURT : All right . So , Mr . Taupier , do you
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understand that?
THE DEFENDANT : Yes , I do .
THE COURT : Ms . Mathers filed an appearance
representing that she alone was representing you on
the voyeurism and on the threatening file .
THE DEFENDANT : That ' s correct .
THE COURT : Now , Mr . Schoenhorn is now saying
he ' s representing you on the threatening file
because , Mr . Schoenhorn , you filed an appearance in
lieu o f Ms . Mathers?
ATTY . SCHOENHORN : In lieu of Ms . Mathers , yes .
THE COURT : But I ' m now being told by Mr .
Donovan that Mr . Donovan is going to file in lieu of
Ms . Mathers on the voyeurism file , so Mr . Donovan now
appears as your sole counsel on these voyeurism . Do
you understand that?
THE DEFENDANT : I do , yes .
THE COURT : Now , until Ms . Mathers filed her
appearance in lieu of you also had Mr . Jelly
representing you on the voyeurism file , but under the
current status , as we ' ll be leaving it right now , Mr .
Donovan is your only attorney on the voyeurism case .
Do you understand that?
THE DEFENDANT : Yes , I do .
THE COURT : So if it ' s your intention to retain
Mr . Jelly to represent you along with Mr . Donovan on
any file then you must have him appear in court and
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file an appearance because he ' s no longer of record .
Do you understand that?
THE DEFENDANT : I do , yes .
THE COURT : So , all right . Well , then we have
that issue resolved , I believe . Obviously the state
has nothing to add , just wants to get this all clear
for the record .
ATTY . HANS : Thank you , Your Honor .
THE COURT : All right . So then we have further
matters that need to be addressed today on the
threatening file , which we ' ll take up this afternoon .
So everyone is excused until two o ' clock .
Mr . Donovan , you ' re free to go because you ' re
not involved in the threatening case .
And, Ms . Mathers , you ' re out of both cases .
ATTY . MATHERS : Criminal . Yes , Your Honor .
Thank you , very much .
THE COURT : So you ' re free to go .
ATTY . MATHERS : Thank you .
THE COURT : And , Mr . Schoenhorn , I ' ll see you
after lunch .
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ATTY . DONOVAN : Your Honor , just for the record
there was -- last week when I was on vacation a
protective order that was issued in the file that I ' m
representing him on --
THE COURT : There was .
ATTY . DONOVAN : There may be the necessity in
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the future to request a Fernando hearing in
connection with that .
THE COURT : All right . Well , then -- well ,
you ' ll move for one should you want one , correct?
ATTY . DONOVAN : Thank YOll , Judge .
THE COURT : All right .
ATTY . MATHERS : Thank you .
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THE COURT : So that ' s where we stand . And we
\.,.ill pick this up after lunch .
ATTY . SCHOENHORN : And with the agreement of
Attorney Hans , there is -- the case in chambers that
the Court recalled there was a decision about the in
rem matter and this is -- we agreed that this would
be the case and we would like the Court to look at it
before we actually have it on the record and we ' re
giving a copy of State v . Reddy, R-E-D- D- Y, which --
unless the Court is aware of a different one , this is
the one we were - - we found .
THE COURT : All right . I ' ll take a look if this
is the case . Thank you , for alerting me to the case .
ATTY . DONOVAN : As far as a new date is
concerned , this case was originally scheduled for
this coming Tuesday .
ATTY . HANS : That ' s correct , Your Honor , the
THE COURT : Is that right?
THE CLERK : Yes , Your Honor .
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ATTY . HANS : Yes . Yes , sir .
THE COURT : 9/16 . Okay . So , I guess we ' 11 say
9/16 , but I suspect if there ' s a change in that
schedule I ' ll have the clerk contact you , Mr .
Donovan .
ATTY . DONOVAN : Certainly , Your Honor .
THE COURT : All right .
ATTY . SCHOENHORN : So two o ' clock , Your Honor ,
or 2 : 15 or what would the Court ' s pleasure?
THE COURT : Yes , 2 : 15 . Thank you.
ATTY . HANS : Thank you , Your Honor .
(Recess at 1 : 09 . Unrelated matters heard
and resume at 3 : 53 . )
THE COURT : Good afternoon , everyone , and thank
you for your patience . Now , we are back on the
record in the Taupier case now having earlier this
morning or earlier today rather , having resolved to
some extent the state of the record concerning Mr .
Taupier ' s legal representation .
So what brings us back on the record , as I
understand it , today is the firearms seizure hearing .
The Court really knows nothing about the
circumstances of that seizure , but had docketed , as
it normally does , a firearms hearing for today .
Earlier today , sometime this morning , Mr . Schoenhorn
filed his appearance and the matter that now has to
be considered is the 29-38c here .
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ATTY . HANS : Correct , Your Honor .
ATTY . SCHOENHORN : Well , procedurally , if I just
may before we even get started . It ' s my
understanding that there ' s a family docket number
that ' s been assigned to that matter . I was given a
document -- a docket number by Attorney Hans , who
I wrote it on the copy of a motion , but I have no
idea whether there ' s an ac t ual civil docket number ,
because it wouldn ' t be part of the criminal , the
statute itself says it's separately civilly docketed .
THE COURT : And actually I don ' t know where the
FAM came from , but the file that I ' m looking at - -
ATTY . SCHOENHORN : Yes .
THE COURT : -- which is the clerk ' s file is
simply Docket No . MMX-CV14-S4 .
ATTY . SCHOENHORN : Oh . So it ' s -- so if I
may
THE COURT : And I ' m only guessing it , this may
be the 54 th of these hearings , 54 th asset - - not asset
forfeiture 54 th firearms seizure hearing .
ATTY . SCHOENHORN : All right . I thought maybe
that would be the 54 th civil case in this building ,
but obviously I ' m not sure about that . If I may have
permi ssion then to change the FA
THE COURT : Of course .
ATTY . SCHOENHORN : -- to CV on the motion I just
filed?
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(Pause)
ATTY . SCHOENHORN : And for the record , Attorney
Jon Schoenhorn representing Mr . Taupier as the
respondent in this matter .
THE COURT : Yes .
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ATTY . SCHOENHORN : I just want to make sure that
the court reporter ' s caption reflects that for now --
we ' re not talking about a civil matter , although at
some point before the end of the day I may want to
address the conditions on the criminal matter because
I noticed the court ' s order said there would be an
opportunity to review them on the 11th and that ' s
today .
THE COURT : Yes . All right . So you have filed
a motion to dismiss the in rem action , and I suspect
by in rem you ' re referring to the firearm seizure?
ATTY . SCHOENHORN : Yes .
THE COURT : And to return unlawfully , what you
allege is unlawfully , seized property?
ATTY . SCHOENHORN : Yes , Your Honor .
THE COURT : All right . So are there any other
matters, Mr . Schoenhorn , procedurally that you wanted
to take up before this court continues?
ATTY . SCHOENHORN : Do you mean in the criminal
case?
THE COURT : Well , in any case .
ATTY . SCHOENHORN : Well , procedurally at some
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point I just want to address the issue of the
conditions of release , that ' s the only procedural
matter that I want to address .
THE COURT : All right . That ' s the only thing .
Then where -- so , yes , Ms . Hans .
ATTY . HANS : Brenda Hans , Assistant State ' s
Attorney for the people of the State of Connecticut ,
Your Honor , in this matter . We ' re ready -- we had
five witnesses that have been here since 9 : 00 this
morning , we released them on the hearing on the risk
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charge . They ' re placed on-call status . I know there
\vere over 100 cases on the S Docket today .
THE COURT : It was a busy day .
ATTY . HANS : I just received the motion to
dismiss that pertains to the risk . It ' s now 4 : 00
p . m. I have to initiate the hearing I ' ve marked
what we have as state ' s exhibit , the three page at
risk search and seizure warrant .
marked 10 only at this juncture .
I ' d ask that it be
I know that
Attorney Schoenhorn does object to it being admitted
as full .
THE COURT : Does or doesn't? Well , then I won ' t
look . You ' ve asked that an exhibit be marked .
ATTY . HANS : Yes , Your Honor . For 10 purposes
only because it ' s really the crucial document in the
hearing .
THE COURT : All right . Well , then it ' s been
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marked for identification . The Court ' s not going to
review it , but what I ' m trying to do is ascertain the
most efficient way to address the many issues that
could be the subject of a hearing today .
ATTY . SCHQENHORN : May I suggest something?
THE COURT : Please do .
ATTY . SCHOENHORN : I say that because I ' m
raising both in personam and subject matter
jurisdictional claims in my motion that for purposes
of that motion and that motion alone , the Court may
without objection look at the -- because I ' m claiming
deficiencies in both the document and its service and
notice to the respondent in this case . In order to
be able to determine that the Court wouldn ' t
necessarily have to look at the document , just like
if this was a regular civil -- I know you haven ' t sat
civil in probably , I don ' t know , 20 years because
I ' ve known where you ' ve sat and presided , but the
judge might have to look at both the complaint and
the service of process in any civil case , that
doesn ' t mean the court is considering the truth of
any of the matters contained therein , it ' s a matter
of whether it sets forth certain information and
complies with the statute .
So as long as the Court feels that it could
review the actual document and service and return
without being prejudiced as to its contents , because
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othenvise it ' s rank hearsay and I would certainly
object to it being considered for the truth of the
matter asserted .
THE COURT : So you said this challenges subject
matter and in personam
ATTY . SCHOENHORN : In personam, yes .
THE COURT : What is the -- the in personam is
the service?
ATTY . SCHOENHORN : He ' s never been served with
this and the document itself , even if the Court just
looks at the return , it says it ~-Jas returned to the
Hartford State ' s Attorney ' s Office . There ' s no
indication that a copy was ever sent , nor \Vas a
notice sent from the court to him . I will certainly
represent that an e-mail was sent yesterday to
Attorney Mathers , who again , just because she
represents Mr . -- or had represented Mr . Taupier for
a few days in a criminal matter does not constitute
service or notice under the statute . So the fact
that of as a matter of fact , we only found out
about this yesterday , so -- and when I said earlier
today the fact that Ms . Hans said well , she only saw
the motion today , that ' s because last night was the
first time anybody saw this document at all , that is
on the defense side .
THE COURT : All right . And the subject matter
jurisdiction is a different claim than the service?
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ATTY . SCHOENHORN : Yes .
THE COURT : And that is?
ATTY . SCHOENHORN : The subject matter
jurisdiction claim is that the document --
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THE COURT : Is it Paragraph 4 of your motion
that just challenges the constitutionality of 29 - 38c?
ATTY . SCHOENHORN : And 3 .
THE COURT : Without probable cause . So you ' re
challenging the sufficiency of the allegations within
the warrant .
ATTY . SCHOENHORN : Yes . Similar to when one
would have a complaint , one would file 'a motion to
strike in a regular civil case as to whether the
allegations are sufficient to even proceed with a
hearing .
THE COURT : All right . So I guess this is the
first step along the way , and the state has seen this
motion for the first time and hearing of these claims
for the first time and it would seem that we need to
give the state an opportunity to research the issues
presented and then , do you see the motion requiring
evidence , Mr . Schoenhorn , or is it something that is
done on the papers and on argument of counsel?
ATTY . SCHOENHORN : I believe that this motion is
argument , it ' s argument on the face of the papers ,
although
THE COURT : So it ' s a four corners --
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ATTY . SCHOENHORN : -- although my knowledge --
if the state was going to claim well , that the --
let ' s say the challenge was to the marshal ' s return
of service , if there had been one , all right . If
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If there ' s none the Court decides it on the papers .
there ' s a question of , let ' s say , whether abode
service was sufficient , you call the marshal , he
testifies where he left it , what efforts he made .
But I submit that on the face of these documents
there ' s not only insufficient service under the
Practice Book , there is no service which therefore
specifically violates 29 - 38c in its requirements ,
therefore that would also go to - - that this is
subject matter jurisdiction as well as in personam
because this is a constitutional right that ' s being
infringed on . And if the Court has look at State v .
Reddy, which I believe we handed up to the Court --
THE COURT : I did .
ATTY . SCHOENHORN : -- before the lunch break , it
seems to make clear that the term " shall " in this
status is mandatory subject , however , to waiver , and
in that case the waiver by the defendant and there ' s
certainly no waiver -- I want to be -- here --
THE COURT : Well , I mean , I guess we ' ve started
the hearing .
ATTY . SCHOENHORN : Right .
THE COURT : So I don ' t think there ' s any issue
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really as to the timeliness of the proceedings .
Today is , if I understood correctly based on our
discussions , wi thin the 14 days that 29-38c requires .
ATTY . SCHOENHORN : Right .
THE COURT : But I suspect hav ing started now
with the receipt and preliminary argument from the
respondent on the motion to dismiss it is appropriate
for the Court to allow the state to have an ample
opportunity to respond to the motion . So I suspect ,
unless I am convinced otherwise , that I ' ll be
continuing the case today to a later date at which
time I will be expecting the defense -- I ' m sorry ,
the state to be prepared to respond to the state ' s
[sic] motion to dismiss the
ATTY . SCHOENHORN : You mean the defense motion .
THE COURT : Well , the respondent ' s motion ,
right . The respondent ' s motion , I may have misspoke ,
but -- and it would seem to be useful for the parties
up until that date to discuss whether there will be
the need for any evidence to be received by the
Court . If Mr . Schoenhorn is correct that these
documents were not served on the defendant and the
state feels that that is correct then I guess the
parties can agree to that . If the state feels that
service wasn ' t required or that there was some
functional equivalent of that then the state can
argue that , but I guess one of the things that would
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be useful is to have the parties consult before the
date , our next date , so that we can proceed on the
date we choose .
So is there anything else we can do today to
make any other progress on the motion?
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ATTY . SCHOENHORN : If I - - I think perhaps . If
I may .
(Pause)
ATTY . HANS ; Your Honor , on behalf of the state
I ' d like to formally , under Practice Book Section 10-
31a , I am the adverse party being the recipient of
this formal motion to dismiss that just was handed to
me and was just filed to the court . There are five
separate legal grounds. Of course , Mr . Schoenhorn
has done his homework , they ' re very complex issues ,
he ' s very thorough . We are at a distinct
disadvantage and are not , because we were just served
this , able to go forward more in the in rem hearing .
I know we started it and I ' ve certainly submitted an
exhibit for identification .
THE COURT : No . I ' ve already said . It ' s my
impression that the thing now to do is to pick a date
so that you have a chance to get up to speed . The
motion was filed in court , you know , 10 minutes ago ,
and we need to give the state some time to reply as
it deems appropriate . So is there anything - - having
commenced the hearing and because this issue , I think
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by law , must be taken up first before anything else
can be decided .
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ATTY . SCHOENHORN : I ' m only stating , Your Honor ,
that to the extent that the Court has now indicated
that it ' s giving the state time to respond , I want at
least for the record very clearly state I object ,
that I believe the statute specifically mandates that
t he hearing be held within the 14 days , and Reddick
as I read -- I mean Reddy rather , R- E- D-D-Y .
THE COURT : Right . That ' s at 135 Conn .
ATTY . SCHOENHORN : I believe it ' s very clear
that it ' s mandatory . I would just also then add
that , I ' m not sure in Reddy they specifically argued
this , but because it implicates second amendment
rights , that it therefore would and under U. S .
Supreme Court precedent the second amendment is
deemed as imp ortant as the first amendment , who knew .
But in any event , because of that it is an
infringement of the most fundamental right , and
therefore , I submit , that the terms are very
stringent , similar to when we have restraining
orders , family law , domestic violence restraining
orders , the hearing must be held within 14 days
unless the parties agree to a continuance . So having
said that , whatever ' s going to happen is going to
happen , but I do not want the record to suggest that
I acquiesced in that without maintaining that we need
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to go forward with the full hearing and make the
determination about the sufficiency of the
proceedings .
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THE COURT : So it would be your position , having
filed this , the state has to be now prepared to
address constitutional questions , probable cause
issues , service questions , all between 4 : 10 p . m. and
tomorrow at 5 : 00 and the Court has to independent
review your claims , the claims of the state and issue
its ruling by tomorrow?
ATTY. SCHOENHORN : Well , at least let -- the
record should reflect that my copy of the motion ,
wi thout knov,ring the docket number , was handed to Ms .
Hans this morning before ten o ' clock or right around
10 : 00 a .m.
THE COURT : All right . That even by -- we ' ll
start at ten o ' clock .
ATTY . SCHOENHORN : Okay .
THE COURT : So it would still have to - - that
would still be your position?
ATTY . SCHOENHORN : Yes. As was the fact that a
lawyer, not my client , but the lawyer for Mr . Taupier
became aware of this proceeding yesterday late
afternoon from an e-mail and voicemail from the
clerk . So to the extent that I spent a good deal of
my evening right after dinner researching all of this
for today , and I appreciate Ms . Hans ' comments about
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my thoroughness , I was clearly not as thorough as I ' d
like to be .
THE COURT : Well , are you going to want to brief
this as well or not ?
ATTY . SCHOENHORN : No . I ' d like it I ' d like
to be heard on the arguments and looking at -- on the
face of the documents it ' s my position that the Court
could make that determination . However , like I said ,
I just want my position at least clear on the record .
THE COURT : All right . Well , I will make two
findings \VeIl , I ' m going to make two corrunents in
response to that , also for purpose of the record .
No . 1 , we have begun the hearing in the Court ' s view
with the first order of business having be to
determine this Court ' s jurisdiction to go any
further .
Secondly , I don ' t think the Reddy case in which ,
I believe the first sentence of the opinion or very
near that says , both parties agree this should be
reversed , which is a little different than what we
have here . So I don ' t think the issue about the 14
days being extended for good cause has really been
foreclosed by Reddy . But I think the case has been
started in a timely fashion and secondly , I think
having done so it is now appropriate to allow the
issues, which admittedly are complex and involve
constitutional and statutory interpretation , should
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be fully addressed by this Court and not in a summary
fashion . Both parties should have an opportunity to
litigate this so that the interests of their
respective clients can be protected .
So , Attorney Hans , how much time would you like
to reply? When I say "replyH I don ' t mean
necessarily in writing , though you are certainly
invited to do that and direct the Court to any case
law . I suspect there will be little and Mr .
Schoenhorn has indicated he ' s not going to be
briefing the issues , leaving the Court to do its own
research as to whether or not this statute involves a
violation of the constitutional right to bear arms ,
which one would see as a somewhat complex question ,
but ...
ATTY . HANS : Your Honor , I ' m simply asking for
what the Practice Book allows me under 10-31a , that
I -- any adverse party -- and I ' m quoting it
directly -- any adverse party shall have 30 days from
the filing of the motion to dismiss to respond to the
motion to dismiss by filing and serving, in
accordance with Sections 10-12 through 10-17 , a
memorandum of law in opposition , and where
appropriate supporting affidavits as to facts not
apparent on the record . I would submit to the Court
that I also under those provisions, 10-31a , I would
be submitting my memorandum at least five days before
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the actual hearing and to give Attorney Schoenhorn
notice .
I , as far as -- I agree with the Court , we ' ve
started this hearing and I don ' t think there ' s any
case law that Mr . Schoenhorn can cite that says we
have to complete the hearing within the 14 days . I ,
myself, have five witnesses and other exhibits aside
from the pre - marked exhibits that I ' ve already
i dent ified with the Court .
There ' s one other thing I wanted to say , Your
Honor , just for the record . There are a bazillion
cases where a judge , finding good cause , can continue
right in the middle of trial. If it ' s a speedy trial
motion and you ' re supposed to be within the 120 days ,
if good cause is found then it can be continued .
THE COURT : I ' m aware . I ' ve already found that
we have begun the hearing and feel there is good
cause to proceed in the manner that I ' m now
identifying .
But , Mr . Schoenhorn , having stressed that this
is a civil matter , how do you respond to the state ' s
claim then the rules of civil the Practice Book
rules should apply and therefore counsel should have
30 days to reply?
ATTY . SCHOENHORN : Well, I believe that the
language of the statute supersedes the generic civil
rules , just as in restraining orders and there are
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other special , I believe , there are other special
kinds of hearings that have to be held within a
certain period of time . If there ' s a preliminary
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injunction filed , the fact that the opposing party
files a motion to dismiss does not automatically
delay if , let ' s say , an infringement of First
Amendment rights it doesn ' t automatically go another
30 days . Having said that , however , all right , I
don ' t necessarily - - well , let me be clear , I don ' t
agree that the hearing has actually started because
\-le ' re talking about it -- a hearing means under the
definition of due process , witnesses are called ,
evidence is presented .
THE COURT : Well , now wait . You filed a motion
challenging my jurisdiction .
ATTY . SCHOENHORN : Right .
THE COURT : I can ' t go beyond that . Do I
understand the civil law enough to know that must be
addressed immediately when raised?
ATTY . SCHOENHORN : Yes .
THE COURT : Or cannot proceed further .
ATTY . SCHOENHORN : Yes . But I -- so my position
simply is that in light of the specific time frames
in the statute , that the 30-day rule doesn ' t apply in
the Practice Book the statute itself supersedes the
generic time frame for pleading and whatnot .
THE COURT : And it would then require the brief
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and response to pleading to be done within less than
24 hours so that it could all be --
ATTY . SCHOENHORN : That \.;ould be my request .
THE COURT : All right . Well , the Court is going
to give the state what it bel ieves is ample
opportunity , but at the same time will attempt to
recognize that the spirit of this statute at 29-38c
is for a defendant or a respondent or an individual
whose guns are seized , to have an opportunity for
prompt review of that seizure . I ' m going to direct
the state to be prepared to present argument in a
shorter period than the 30 days .
Now f Mr . Schoenhorn .. .
ATTY . SCHOENHORN : May we go off the record then
if we ' re going to discuss timing , just do it off the
record for a moment then?
THE COURT : Okay .
(Discussion off the record . )
THE COURT : So we're now back on the record
having had an opportunity off the record to discuss
scheduling . It had been the Court ' s already stated
intention to direct the state to be prepared to argue
the motion in less than 30 days and also to submit
any filings , responsive pleadings in less than 30
days as well , attempting to balance the Practice Book
rules against the special rules in 29-38c . But
having had a chance to discuss the weeks ahead with
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counsel , I ' m advised that Attorney Schoen horn is
already ordered to begin jury selection on Monday ,
this coming Monday .
ATTY . SCHOENHORN : Yeah , yeah .
THE COURT : So three days from now .
ATTY . SCHOENHORN : Right .
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THE COURT : And he anticipates that after jury
selection evidence will begin and won ' t conclude
until October 3 rd with jury deliberations perhaps on
the 7th . So \vhat I will order is as follows : The
state is directed to reply in writing , if it chooses
to do so , no later than September 30 th , and we will
then have our argument on October 9th I and I would
suggest we schedule that for eleven o ' clock and that
way I can handle the few cases that I have that day
before then . All right . Now , so the hearing on the
29-38c seizure is continued for further proceedings
before this Court on October 9 th
Now , Mr . Schoenhorn , you ' ve asked to be heard
with regard to certain other aspects of the criminal
case .
ATTY . SCHOENHORN : Yeah . And just before we go
to that , I just want to make sure that - - assuming
the Court agrees with any of my grounds for the
dismissal , that it dismisses the matter that would be
the end of that risk -- that hearin g under 29-38c is
done unless the state appeals . But besides that , if
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the Court denies the motion , is it my understanding
that the state should be prepared sometime during
that same day to go forward even if it ' s an hour or
two later ? In other words, it should have witnesses
on call , so that I should block off that entire day .
THE COURT : Well , that ' 5 a fair ... well , I hadn ' t
really thought -- I hadn ' t thought about it . How
long do you see the arguments going?
ATTY . SCHOENHORN : Well , the argument , less
than
THE COURT : Well , I mean , I see the -- when we
start at eleven o ' clock on the 9th , you ' ll maybe add
some substance to this , I guess . I ' ll have reviewed
the documents and reviewed any filings of the state .
r mean , do you see the hearing taking more than ... !
mean , do you want to do it the next day? I mean ,
what ' s your schedule on 10/10 or the following
Monday -- oh , no , the Monday is the holiday . Monday ,
I think , is the holiday . 10 / 10 isn ' t t hat busy , we
could do the hearing on 10/10 .
ATTY . SCHOENHORN : Well , again , subject to my
objection to any continuance though I ' m available on
the 10 th .
THE COURT : Well , why don ' t we do this , let ' s
have everybody reserve 10/10 as well , but , Mr .
Schoenhorn , it may well be as we get a little closer
if the issues are as clear as you suggest they might
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be then maybe I ' ll have a better sense . I mean , I
don ' t want to -- the witnesses -- the state
represents were here most of today in anticipation of
going forward , if I can avoid having them sit here
all day on the 9th only to learn that they needn ' t
have been here in the first place . I would certainly
accommodate them to the extent I could and would your
witnesses as well if you care to call any . So why
don ' t we , for the time being , keep the loth open as
well , but maybe as we get closer to the 9th we ' ll
have a better idea .
All right . Now , what about your other areas?
ATTY . SCHOENHORN : I ' m sorry . Ms . Hans has a
THE COURT : Yes .
ATTY . HANS : Your Honor , just before we leave
the risk issue I just want to put the defendant on
notice and just let the Court know that , you know ,
there is in Taupier v . Taupier , the civil case , we
believe there was an agreement the guns should have
already been turned over and they ' re also anticipated
to be seized as evidence in the threatening case , so
even if you make the finding that there ' s no imminent
threat and order the release of them there are other
avenues in which these firearms are held .
ATTY . SCHOENHORN : I think in chambers we had
this discussion . There ' s no question that there are
other orders currently in place that would not --
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would preclude the weapons going back at this time to
my client . The issue is a procedure has been filed ,
a civil suit has been filed that seeks certain relief
and I ' m entitled to challenge that and fight it
along -- you know , the choice is whether to do that
and that was the state ' s not mine , so .
THE COURT : Well , Ms . Hans , I mean , my initial
impression is in accord with that just stated by Mr.
Schoenhorn , that it would seem that there is an
action pending which requires adjudication . It may
not work any immediate pract ical relief with regard
to the items seized , but to the extent that the 29 -
38c process has collateral consequences , those
consequences need to be the subject of a hearing
before they could be allowed to occur . So I
suspect -- I mean , the re ' d be one -- the state could
withdraw and just determine it's going to hold the
\veapons under what Mr . 5choenhorn says, may be other
ways, but then the state would lose any right to seek
other relief under 29-38c . But as it goes right now
I can ' t , I don't think , say , well , I ' m not going to
rule on this because you ' re not getting the guns back
anyway.
ATTY . HANS : I understand , Your Honor . I just
wanted to alert the Court.
THE COURT : All right .
So , Mr . 5choenhorn , what else did you want to be
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heard on with regard to now the criminal case , which
is the threatening file , the docket number of which
is CR- 14-675616 , it charges threatening first ,
harassment second .
ATTY . SCHOENHORN : Okay . A couple of things .
And this has to do with the conditions that the court
had imposed that might have had collateral
consequences that were not necessarily contemplated
during the orders , and aside from the two separate
large cash bonds that had to be imposed and then
there were conditions imposed in Hartford , over
severa l days and coming up with additional arguments ,
then the case is transferred here . I believe that
there ' s one thing that can be resolved quickly . I
want to make sure in light of the fact that my
that Mr . Taupier was not allowed to come to my office
to meet with me , that that is clearly now the Court
will make clear on the record that he has the right ,
you know , and he can discuss it with CSSD , obviously ,
and let them know when he has those appointments , but
he has the right , subject to notifying them , to come
to meetings at my office .
THE COURT : What are the orders - - may I see the
threatening file , please?
(Pause)
THE COURT : Did the defendant first appear
before Judge Alexander on 9/ 2 on the threatening
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charge , am I looking at the right ...
ATTY . SCHOENHORN : He was held on a cash bond
that was posted -- that was ordered in the warrant
itself by Judge Mullarkey , but he was released over
the weekend and given a court date which he was
subsequently telephoned to come in before the date
that had been assigned .
THE COURT : So did he shoH up the day after
Labor Day ?
ATTY . SCHOENHORN : Yes , he did .
THE COURT : Okay . That ' s 9/2 . And then the
bond was increased then?
ATTY . SCHOENHORN : To -- by - - yes .
THE COURT : By Judge Alexander .
ATTY . SCHOENHORN : To $75 , 000 cash .
THE COURT : Increased by 40?
ATTY . SCHOENHORN : 40 more , right . Right .
THE COURT : Right .
ATTY. SCHOENHORN : Which was posted , I guess ,
that night .
THE COURT : Al l right . Well , then there ' s an
issue that needs to be addressed because one of the
orders of Judge Alexander is that the defendant must
stay 1 , 000 feet away from Judge Bozzuto .
ATTY . HANS : In family , Your Honor .
ATTY . SCHOENHORN : Right . I haven ' t measured
the distance from the family court to my office , but
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it ' s -- if it ' s not 1 , 000 feet it ' s close to that .
My office is hear -- it ' s right behind the criminal
court on Lafayette Street then you -- so you have
that entire parking lot , however wide that is , then
you have Lafayette Street , you have the --
THE COURT : I know where your office is . And
frankly I don ' t know where Judge Bozzuto sits , but
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ATTY . SCHOENHORN : Well , family court is over on
90 or 80 Washington , it ' s one of those next to the
state police barracks on Washington Street . And I
don ' t know where her chambers is in relation to that
building as well .
THE COURT : So what ' s the state ' s position on --
ATTY . HANS : Your Honor , I ' m just very concerned
about it given the nature of the threats . I mean ,
the judge ' s order -- Judge Alexander ' s order was very
explicit , stay 1 , 000 feet away from Judge Bozzuto and
her family . Given the proximity of his office to
where she \vorks daily Monday through Friday I have
some , I have some real concerns about it .
THE COURT : I mean , Judge Alexander further
ordered -- oh , did the defendant then return to court
on the Wednesday?
ATTY . SCHOENHORN : Yes .
THE COURT : So he was there and then when he
returned on Wednesday - -
ATTY . HANS ; Tuesday and Wednesday , 9/ 2 , 9/3 .
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ATTY . SCHOENHORN : So the judge had
THE COURT : On Wednesday there were further
conditions that prohibited the defendant from the
town of residence of Judge Bozzuto .
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ATTY . SCHOENHORN : Right . Which isn ' t Hartford
or Cromwell , so.
THE COURT : I suspect it was certainly the
intention - - well , what ' s the state ' s position on
this?
ATTY . HANS : Your Honor , my position is that he
not be allowed to go to Mr . Schoenhorn office because
it is right adjacent to the family court , there ' s no
reason they can ' t meet at a neutral site that is not
in the close proximity to the judge . So that would
be the state ' s position and I think that ' s complying
with the black letter of Judge Alexander ' s orders .
So I would - -
THE COURT : Well , Judge Alexander ' s orders have
to be considered at least giving due deference to the
defendant ' s Sixth Amendment right as well , so I can ' t
be blind to the defendant ' s right to meet with Mr .
Schoenhorn .
ATTY . HANS : And no one ' s saying that , Your
Honor . He has a Sixth Amendment right to counsel and
he can certainly meet at a location that ' s convenient
to both he and his attorney , just not at the 108 Oak
Street , which is in very close proximity to the
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family court .
THE COURT : Well , I ' m not in a position to
determine whether or not your office within 1 , 000
feet or not . I mean , it ' s in relative close
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proximity , but I have no idea if it ' s a quarter of a
mile away or more or less , it ' s a little less than , I
guess , a quarter of a mile , 1 , 000 yards . Or it is
1 , 000 feet or 1 , 000 yards? A thousand feet .
ATTY . HANS : Feet .
ATTY . SCHOENHORN : I think it may be more than
that because then we ' re talking about my office isn ' t
in my parking lot , which is behind my building and
THE COURT : But you know what , this is not
the -- Mr . Schoenhorn , let me ask you this
question --
ATTY . SCHOENHORN : There ' s no reason my client
needs to go in front of or behind the family court
building . So to the extent that he has to make a
circuitous route to get to my office , my office is on
a one-way street and then as you leave there you get
to -- directly to I-84 . I could -- since he lives in
Cromwell , require that he take Route 9 up to 84 and
get off at the Capitol Avenue exit and come down Oak
Street and go around the block that way, so then he
never has to be near the family court except that
there ' s also the issue the case has not yet been
transferred . Attorney Mathers pointed out that his
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family matter isn ' t --
THE COURT : When is that case down next?
(Pause)
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ATTY . SCHOENHORN : The 16th I but I know that a
motion has been filed \vith Judge Sim6n to transfer it
here , but if it needs your
THE COURT : By Attorney Mathers?
ATTY . SCHOENHORN : By Attorney Mathers , and I
got a text that she didn ' t knOH whether it requires
your approval as the administrative family judge for
this court , but it would certainly be my client ' s
request that it be allowed to corne here if that ' s
what Judge Simon orders , because that would be the
same building .
THE COURT : All right . But as it stands now the
defendant has been ordered to appear before Judge
Sim6n in Hartford on the 16 t h ?
ATTY . SCHOENHORN : Well , his next date for his
hearing is the 16 t h
THE COURT : Right .
ATTY . SCHOENHORN : But that conflicts with
Judge -- with the pending order regarding staying
aHay from Judge Bozzuto . It doesn ' t say stay away
from the family court , so that depends on whether
Judge Bozzuto ' s even working that day , which is of
course that ' s a problem .
THE COURT : All right . Let me ask you a
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question , Mr . Schoenhorn , do you have any
intention -- I ' m asking you as an officer of the
court -- to be meeting with Mr . Taupier before Monday
the 15th ?
ATTY . SCHOENHORN : No , not before Monday .
THE COURT : Then here ' s what I would ask , I see
the issue but I do think that this all I would
like to call to find out if the family case is being
transferred here . I would like to issue one order .
I will not deprive Mr . Taupier of his right to see
you , if you ' re not going to be seeing Mr . Taupier
before Monday then I will issue an order on Monday
and you can contact the clerk ' s office and it would
enable you to see Mr . Taupier as soon as Tuesday if
you wish to . I am reluctant to impose -- and you ' re
certainly able to see Mr . Taupier in any other
location .
ATTY . SCHOENHORN : That ' s correct , but in terms
of my computer access and this is a computer case and
so there ' s --
THE COURT : There is -- you ' re not deprived from
going to another location , but there is an order that
prohibits you and it may well be that your office is
within that area , as I suspect going to the family
court would be .
ATTY . SCHOENHORN : Well , that ' s why I ' m asking
for a modification of that order and
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THE COURT : Right . So I have to see -- and I
want to issue one order . I don ' t want to have this
issue come up again on Tuesday , so . You may see Mr .
Taupier if you wish to before that date , but I ' m
going to prohibit Mr . Taupier from being at your
office until further order of the court which will be
issued on Monday the 15th
ATTY . SCHOENHORN : Okay .
THE COURT : What else?
ATTY . SCHOENHORN : The second issue is , again ,
it was asked by Attorney Mathers for me to mention it
to the Court , there is the issue of Judge Sim6n --
there was -- before this there was equal parenting of
these children , they lived half the time with my
client, half the time with the wife . Now as a result
of this Court ' s order , not Judge Alexander ' s order ,
because it ' s a 24-hour otherwise lockdown , there
isn ' t an exception for even going to the court
authorization , supervised visitation location , which
I understand is in Vernon .
THE COURT : Right . I heard Rockvi lle .
ATTY . HANS : Kid Safe .
THE COURT : That was what Attorney Mather said
earlier this week .
ATTY . SCHOENHORN : Right . And I did read the
note . I mean , there ' s a length y notation of Your
Honor ' s ruling on that . I ' m asking that that be
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modified that , again , as long as CSSD specifically
confirms the time and whatnot of those appointments
that he be allowed to see his children . He hasn ' t
been able to see his children since the well ,
certainly since his arraignment , so that ' s now
been
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THE COURT : I understood I was only - - there was
one meeting that was , I think , scheduled for
yesterday. The only visit that I was aware of that
the defendant would have been having with his
children was Wednesday supervised visitation in
Rockville . And I said that I'm not going to permit
and the parties will be back in court on Thursday .
So tha t was --
ATTY . SCHOENHORN : And now here we are .
THE COURT : And here we are . Okay . So when is
your client next to see his children?
ATTY . SCHOENHORN : He was supposed to have
\Veekend visitation , but because -- Saturday but
now that because he was unable to get -- go to this
hearing with Judge Simon I ' m not sure and nor does he
know what the current status of that is because Judge
Simon , obviously when he said you have this meeting
in Rockville and we ' ll go from there , but the court
said he can ' t go there so I don ' t know the answer to
that question .
THE COURT : Well , what ' s the state ' s position on
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what the order should be as we go forward here? We
may not -- other than the order which I ' ll issue on
Monday concerning Judge Bozzuto ...
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ATTY . HANS : Your Honor , my concern is this , I
don ' t know if the Court is in receipt of the
intensive pre-trial supervision progress report dated
today , 9/11/14 .
THE COURT : I ' m not .
ATTY . HANS : Just ask that you take a minute to
review it and ...
(Pause)
ATTY . HANS : And , Your Honor , because there was
more or less zero tolerance issued regarding his use
of electronic monitoring bracelet and it appears from
the progress report that he has violated that .
Again , I have grave concerns about him leaving to go
to the Kid Safe program in Vernon to visit his
children when it ' s clear that he ' s , in the state ' s
position , it appears that he is testing this device ,
determining whether or not he can go under the radar .
So I have some real concerns about -- and in the
progress report ' s opinion violating the zero
tolerance that the court very expressly and
explicitly set out .
THE COURT : Mr . Sc hoen horn .
ATTY . SCHOENHORN : Yes .
hearing on that issue .
I would like to have a
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THE COURT : All right .
ATTY . SCHOENHORN : First of all , the device
doesn ' t have a timer on it . He sits for -- and he ' s
tethered -- he cannot move physically for two hours ,
there ' s a six to eight foot cord , if he moves it
disconnects . So I would submit that , first of all ,
the order was the 2014 instructions is what he had
been given so you have to sit for an hour to record
it , so the fact that they today , today made him sign
a 2012, that is a two and a half year old
instructions , that say you have to sit for t\vO hours
twice a day , that means for four hours a day he
cannot -- he has to sit by a \.JaI l tethered to a short
cord and document and it he moves at all it
disconnects . So I would submit that that is now --
THE COURT : So do we need a hearing on this?
ATTY . SCHOENHORN : So the claim is that -- the
c laim is he was a minute and maybe 50 seconds short
of two hours , that ' s the c laim of non-compliance and
I submit that not only -- and he has to do that twice
a day not on l y to have to sit and not move , they
don ' t even require that of people in solitary
confinement at Northern Correctional . So I would
submit that he ' s looking at a wall clock and it ' s an
analog clock and who knows , he doesn ' t know , it
doesn ' t beep , it doesn ' t tell him exactly when two
hours , so I stand here to have her argue that he ' s
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testing the court because he was a minute -- because
the machine said it was a minute and 50 seconds short
or two hours that he actually then moved and
therefore it disconnected .
THE COURT : All right . Well , we ' re going to
need a hearing , I guess , on the adequacy of the
charging . I have to hear evidence on what the
charging requirements are to make sure the device
continues to work properly . I can't make any
findings on this . Mr . Schoenhorn apparently is going
to introduce evidence that the charging is completed
in less than two hours . The state has claimed and
the Court worked under the evidence it had earlier
this week that it required two hour continuous
charging . I ' m not in a position to make a finding as
to what ' s required . So I think we ' re going to -- and
you know what , this will also -- I ' m going to order
the parties to come back , we can have the hearing on
Monday .
ATTY . SCHOENHORN : I have jury selection on that
day .
THE COURT : Oh , you ' re starting on Monday . So
Hhen are we gOing to do the hearing? I don ' t have
tomorrow , I just do not have any opportunity , there ' s
108 cases down . Do you ...
ATTY . SCHOENHORN : I ' m off the following week
from the trial . In other words , we ' re picking a jury
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then we have a week off .
THE COURT : Okay . So the 22nd is a Monday .
Well , but the only thing is , Mr . Schoenhorn , and the
reason I said do it Monday , I am not inclined to
relieve or to modify any of the more stringent
conditions that I put in place earlier this week
unless I ' m persuaded that this device is being
handled properly or charged properly . So I ' m ready
to do the hearing as early as Monday . If you want it
to be the following Monday then I ' m going to leave
all the orders that I entered earlier this week in
place until Monday the 22nd at which time we can have
a hearing on this device and decide where we go from
here . I will still issue the order , though , on the
15 th to see whether or not - - the order I ' ll issue on
the 15 th , which you can obtain from the clerk , will
be to establish ground rules by which Mr . Taupier can
come to your office .
ATTY . SCHOENHORN : Right .
THE COURT : And then on the 22 nd I will be
available to which is your first day available
after Monday to hear evidence on the charging .
And , aga i n , I would urge the parties to work with one
another to identify what really needs to be addressed
by the Court because I suspect I ' m going to need to
hear from the monitoring company to know I don ' t
know what it says on some 2012 form or 2014 form ,
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you ' re telling me they exist , I assume that they do .
The quest ion is , in my mind , what is necessary to
ensure that this GPS device produces the information
which it is placed on the defendant to provide . And
that ' s what is going to be required .
So , Mr . Schoenhorn , with the exception of
issuing an ordering on Monday the 15th concerning
your right to have your client come to your office , I
will reserve all my other rulings until the 22nd ,
ATTY . SCHOENHORN : And I ' ll just note , the other
issue that I would raise , and I don ' t mean to keep --
THE COURT : Yes .
ATTY. SCHOENHORN :
It ' s 10 of 5 : 00 .
is the order by Judge
Alexander . I apologize , I think this morning I
thought you had issued the order , but it was Judge
Alexander that requires my client to submit to --
THE COURT : Random searches of his person .
ATTY . SCHOENHORN : -- random searches of his
person, his home and his vehicle . I be lieve that is ,
with all due respect , blatantly unconstitutional and
wou ld never be a reasonable order for bail
conditions , one does not - - certainly does not l ose
their Fourth Amendment rights because of conditions
of bail , especially if he ' s locked down there ' d be no
reason for anyone to come into his house and say
we ' re conducting a random search of your house or
your person and I would --
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THE COURT : Well , I don ' t know if the lockdown
issue is what ' s important because , I mean , certainly
others can deliver things to the defendant \.,rhich he
is not permitted to possess , so the right of
inspection might be to ensure that the defendant
hasn ' t come into possession of anything prohibitive ,
but the fact that he ' s locked down doesn ' t eliminate
entirely the possibility that there could be such a
violation , but we can address that as well on the
22nd
ATTY . SCHOENHORN : Right . That ' s the other
issue I intend to address .
THE COURT : All right . So we ' re going to
address on the 22nd the charging , and I suggest that
there ' s efforts made by both sides to contact the
monitoring company to determine what ' s necessary .
ATTY . SCHOENHORN : Right . And I ' m actually -- I
shared this with
ATTY . HANS : He did . Thank you , Your Honor .
ATTY . SCHOENHORN : Ms . Hans , so I ' m just
going to hand up and make it part of the record so
the Court is at least aware of what I ' m talking
about . This is the --
THE COURT : All right . Marshal .
ATTY . SCHOENHORN : -- instructions that were
given from the monitoring company and it ' s July 2014
dated , so at least the Court is aware of that . There
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is one from 2012 that has different information .
THE COURT : And it ' s signed -- that ' s the one
that the defendant was
ATTY . SCHOENHORN : He signed it today , today _
THE COURT : But that ' s the one that says two
hours?
ATTY . SCHOENHORN : That ' s right .
42
THE COURT : Do we know if the device is do we
know if these instructions are pertinent to the
device -- which of either is pertinent to the device
with which the defendant has been equipped .
ATTY . SCHOENHORN : You would have to ask the
CSSD official who had him sign it today .
THE COURT : All right . Well , I suspect that
there will be efforts made by both sides to reach out
to the proper parties to make those determinations .
All right .
So , Mr . Schoenhorn , to summarize we will be
continuing the firearms hearing to October 9th , with
the state ' s responsive pleadings or filings due no
later than September 30 th We will also be back in
court here on the conditions of the defendant ' s bond
on t h e 22 nd of September and on the 15th of September .
I will issue an order setting forth the terms by
which the defendant may see Mr . Schoenhorn at his
office . And your address , Me . Schoenhorn , is on Russ
or Oak?
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ATTY . SCHOENHORN : Oak , 108 Oak Street .
THE COURT : 108?
ATTY . SCHOENHORN : Yes .
THE COURT : 108 Oak Street . All right . Does
that conclude today ' s business , Counsel?
ATTY . HANS : Yes , sir .
ATTY . SCHOENHORN : Yes . Yes , Your Honor .
THE COURT : All right . I will see the parties
back here on Monday , September 22 nd . Thank you .
Adjourn court .
(Proceedings end at 4 : 52 p . m. )
43
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MMX-CR14-0675616T i MMX-CR13-0200821T STATE OF CONNECTICUT
MMX-CVI4-54
SUPERIOR COURT
STATE OF CONNECTICUT JUDICIAL DISTRICT OF
MIDDLESEX
v. AT MIDDLETOWN ,
CONNECTICUT
EDWARD F . TAUPIER SEPTEMBER 11 , 2014
C E R T I F I CAT ION
I hereby certify the foregoing pages are a true and
correct transcription of the audio recording of the above-
referenced case , heard in Superior Court , Judicial District of
Middlesex , Middletown , Connecticut , before the Honorable David P .
Gold , Judge , on the 11 th day of September 2014 .
Dated this 22 nd day of September 2014 in Middletown ,
Connecticut.
'.
Court ilson v Recording Monitor