State v. Skyes

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State v. Sykes

STATE OF CONNECTICUT v. PAUL E. SYKES
(AC 47359)
Cradle, C. J., and Alvord and Clark, Js.

Syllabus

The defendant appealed from the judgment of the trial court finding him in
violation of probation and revoking his probation. He claimed, inter alia,
that there was insufficient evidence that he violated a condition of his
probation. Held:

The trial court did not err in denying the defendant’s motion to suppress
certain evidence seized by his probation officer and other members of the
Office of Adult Probation during a search of his apartment, as the defendant
failed to sustain his burden of proving that the exclusionary rule, which does
not ordinarily apply in revocation of probation proceedings, was applicable
under the circumstances of this case.

There was sufficient evidence to support the trial court’s conclusion that the
defendant possessed sexually explicit materials in violation of a condition
of his probation.

There was sufficient evidence to support the trial court’s conclusion that
the defendant violated the condition of his probation requiring that he use
only those computers that had been approved by his probation officer.

The trial court erred in determining that the defendant violated the condition
of his probation requiring him to take polygraph examinations, as there was
insufficient evidence that his refusal to take a different examination violated
this condition and, accordingly, because this court could not conclude that
the trial court’s erroneous factual finding did not impact the sentence it
imposed, the judgment was reversed with respect to the defendant’s sentence
and the case was remanded with direction to resentence the defendant.
Argued March 18—officially released May 27, 2025

Procedural History

Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two,
where the court, McShane, J., denied the defendant’s
motion to suppress; thereafter, the case was tried to the
court, McShane, J.; judgment revoking the defendant’s
probation, from which the defendant appealed to this
court. Reversed in part; further proceedings.
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State v. Sykes

Judie Lynn Marshall, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were Joseph Corra-
dino, state’s attorney, and Tiffany M. Lockshier, super-
visory assistant state’s attorney, for the appellee (state).
Opinion

CLARK, J. The defendant, Paul E. Sykes, appeals from
the judgment of the trial court finding him in violation
of, and revoking, his probation under General Statutes
§ 53a-32. On appeal, the defendant claims that (1) the
court erred in denying his motion to suppress and (2)
there was insufficient evidence that he violated his pro-
bation. We disagree with these claims. However,
because we conclude that one of the three grounds on
which the court found the defendant in violation of his
probation was not supported by sufficient evidence,
and because we cannot be confident that the court’s
erroneous factual finding in connection with that
ground did not impact the sentence it imposed, we set
aside the defendant’s sentence and remand the matter
for resentencing.1
The following facts, which the court reasonably could
have found, and procedural history are relevant to this
appeal. On February 14, 2007, the defendant pleaded
guilty under the Alford doctrine2 to two counts of sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a (a) (1) (A), two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
1
The defendant also claims on appeal that the court abused its discretion
in revoking his probation and ordering him to serve the full unexecuted
portion of his sentence. In light of our disposition, we do not reach the
merits of this claim. See, e.g., State v. Johnson, 75 Conn. App. 643, 658, 817
A.2d 708 (2003).
2
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
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State v. Sykes

(2), and one count of possession of child sexual abuse
material in the second degree in violation of General
Statutes § 53a-196e. On April 13, 2007, the court, Com-
erford, J., imposed a total effective sentence of twenty
years of incarceration, execution suspended after
twelve years, followed by thirty-five years of probation.
In 2016, the defendant was released from incarceration
and began serving his term of probation. The defendant
subsequently pleaded guilty to violating the terms of
his probation on December 10, 2018, and was sentenced
by the court, Devlin, J., to eight years of incarceration,
execution fully suspended, with 390 months of proba-
tion.
On February 19, 2019, the defendant signed condi-
tions of probation as well as a computer access agree-
ment, which he was required to sign as a component
of those conditions. The defendant’s conditions of pro-
bation and computer access agreement required, inter
alia, that he possess no weapons, ammunition, or
weapon components; submit to a search of his person,
possessions, vehicle, or residence when a probation
officer had reasonable suspicion to conduct such a
search; attend sex offender treatment; take polygraph
examinations administered by a Court Support Services
Division approved, specially trained polygraph exam-
iner for treatment purposes and level of supervision;
neither possess nor subscribe to any sexually explicit
or sexually stimulating material deemed inappropriate
by a probation officer; use only the computers that he
was authorized to use by his probation officer; consent
to having his computer examined and/or searched at
any time to verify compliance with the terms of his
probation; agree to have software installed to monitor
his computer use; provide probation with a list of all
equipment used in conjunction with his authorized com-
puter(s), including backup systems and disks; and not
possess any sexually explicit or sexually stimulating
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State v. Sykes

material in a disk, computer hard drive, or any other
electronic storage medium. The computer access agree-
ment further provided that the defendant was ‘‘responsi-
ble for all material and all information on [his] com-
puter, on any computer [he has] been authorized to use
by [his] [p]robation [o]fficer, and for the contents of
any electronic storage medium under [his] control.’’
The computer access agreement defined ‘‘computer’’
as ‘‘any device capable of accessing the Internet and/or
any web-based applications, including any cell phones,
smart TVs, tablets, mP3 players, USB plug in devices,
gaming systems, etc.’’ The defendant was approved to
have three electronic devices in his residence, all of
which were monitored by the Office of Adult Probation.
The defendant began weekly sex offender treatment
at The Connection Center for the Treatment of Problem
Sexual Behavior (The Connection). The defendant’s
probation officer, Julian Betancourt, received weekly
updates from The Connection on the defendant’s prog-
ress in treatment. At some point, The Connection
informed Betancourt that the defendant had refused to
take an ‘‘EyeDetect’’ examination, which The Connec-
tion was using in lieu of a polygraph examination in
light of the public health concerns posed by the COVID-
19 pandemic. The Connection issued the defendant a
warning regarding his refusal to engage in the EyeDe-
tect examination. Betancourt spoke to the defendant
about his refusal, and the defendant admitted to Betan-
court that he had refused the EyeDetect examination,
stating that he had done so because he did not want
the company that owned the examination to have his
information. The defendant further stated that he would
be willing to take a polygraph examination.
In March, 2021, Betancourt learned from the monitor-
ing software installed on the defendant’s devices that
the defendant had observed two images on his phone
pertaining to the assembly of homemade firearms.
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State v. Sykes

Betancourt subsequently met with his supervisor in the
Office of Adult Probation and, during that meeting, it
was decided that a search of the defendant’s apartment
in Bridgeport would be conducted. On May 13, 2021,
during an appointment with the defendant, Betancourt
told him that he would be searching his apartment and
presented him with a voluntary agreement to search
form that specified the places to be searched as the
defendant’s apartment and vehicle. The defendant
signed the form in the presence of Betancourt and
another probation officer. The form instructed the per-
son filling it out to check one of two boxes, indicating
either that (1) the probation officer had explained to
the probationer that if he did not agree to the search,
the search would not occur and his refusal to the search
would not be in violation of his conditions of probation,
or (2) the probation officer had explained to the proba-
tioner that if he did not agree to the search, the search
would not occur but his refusal might violate a condition
of his probation. Neither box on the form that the defen-
dant signed was checked.
That same day, Betancourt, accompanied by four
other members of the Office of Adult Probation, two
officers from the state police, and between one and
five officers from the Bridgeport Police Department,
conducted a search of the defendant’s apartment and
vehicle. The defendant waited in a car outside his resi-
dence with a probation officer while the search was
conducted. No weapons, machines to make weapons,
or weapon materials were recovered in the course of
the search. The search of the defendant’s residence
did, however, yield approximately thirty-five electronic
devices, including laptops, hard drives, and cell
phones—a quantity well in excess of the three devices
that the defendant was authorized to possess. The
seized items were transported to the state police foren-
sic laboratory (laboratory) for analysis.
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State v. Sykes

Steven DiPietro, a computer forensic examiner with
the laboratory, made copies of the hard drives and other
media recovered from the search, and performed data
extractions on the cell phones. DiPietro found, inter
alia, that a laptop included among the seized devices
contained 54 unique and 14 duplicate images of sus-
pected child pornography; 344 unique and 34 duplicate
images classified as ‘‘child exploitation/age indetermi-
nate’’; and 2 videos classified as ‘‘child exploitation/age
indeterminate,’’ which were located in a folder on the
laptop’s drive titled ‘‘UserssykespDesktopmlk convert.’’
This folder was housed within a user created folder
that was generated when someone with administrative
rights on the laptop created a user account under the
username ‘‘sykesp.’’

DiPietro transmitted the images of suspected child
pornography to the National Center for Missing and
Exploited Children, which identified twelve of them as
depicting victims who had previously been identified
by law enforcement as missing and exploited children.
DiPietro’s analysis also disclosed on certain of the
seized devices various other still images and videos
classified as ‘‘pornographic/sexually stimulating,’’ as
well as PDF files and still images pertaining to weapons
and explosives. In addition, DiPietro discovered other
materials on the seized devices, including receipts from
Maine, where the defendant had resided for a period
of time following his release from incarceration in 2016;
medical documentation bearing the defendant’s address;
a file under the name ‘‘Monica Sykes’’; and a copy of
United States v. Johnson, 446 F.3d 272 (2d Cir.), cert.
denied, 549 U.S. 953, 127 S. Ct. 425, 166 L. Ed. 2d 270
(2006), a case in which the United States Court of Appeals
for the Second Circuit considered, inter alia, the propri-
ety of requiring a person on federal supervised release
to submit to polygraph testing.
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State v. Sykes

Betancourt thereafter sought a warrant for the defen-
dant’s arrest. In the supporting affidavit accompanying
the warrant application, Betancourt alleged that the
defendant had violated the following conditions of his
probation: ‘‘You will participate in polygraph examina-
tions administered by a [Court Support Services Divi-
sion] approved, specially trained polygraph examiner
for treatment purposes and level of supervision’’; ‘‘You
will not possess, or subscribe to, any sexually explicit
or sexually stimulating material deemed inappropriate
by a [p]robation [o]fficer . . . [nor will you] patronize
any adult book or adult video store, strip club, or adult
entertainment club or similar establishment’’; ‘‘I will
notify my [p]robation [o]fficer in writing of any changes
to the original written explanation for my use of the
computer(s)’’; ‘‘I will use only the computer(s) that I
am authorized to use by my [p]robation [o]fficer’’; ‘‘I
will not access any site that contains sexually explicit
or sexually stimulating material and any other site that
my [p]robation [o]fficer has instructed me not to
access’’; and ‘‘I will not possess any sexually explicit
or sexually stimulating material in any manner on disk,
in computer hard drive, or any other electronic storage
medium that can hold this type of material.’’
The defendant was arrested and charged with viola-
tion of probation under § 53a-32.3 The court, McShane,
J., held a revocation of probation hearing over two days
on November 16 and 17, 2023. On November 15, 2023,
the eve of the hearing, the defendant filed a motion to
suppress all items seized during the May 13, 2021 search
pursuant to the first, fourth, fifth, and fourteenth
amendments to the United States constitution, article
first, §§ 7 and 8, of the Connecticut constitution, and
Apart from the warrant application, the record does not reflect that the
3

state filed a long form information or any other charging document that
enumerated the specific conditions of probation that the defendant was
alleged to have violated.
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State v. Sykes

§ 53a-32. In his motion to suppress, the defendant
argued that the Office of Adult Probation had lacked
reasonable suspicion both that he was violating a condi-
tion of his probation and to search the thirty-five elec-
tronic devices seized from his apartment. The defendant
further claimed that the Office of Adult Probation was
‘‘not only acting as an arm of the judiciary but also [as]
law enforcement’’ when it seized those devices and
submitted them to the laboratory for analysis. At the
start of the hearing on November 16, 2023, the court
stated that it would hear evidence pertaining both to
the violation of probation and to the motion to suppress
in the course of the adjudicatory phase of the hearing.
The court then proceeded to take evidence. Betancourt
and DiPietro testified on behalf of the state; the defen-
dant did not testify and called no witnesses.
On November 17, 2023, following the presentation of
evidence and oral argument by the parties, the court
denied the motion to suppress in an oral ruling. The
court found Betancourt’s testimony to have been credi-
ble. It concluded that the Office of Adult Probation had
reasonable suspicion to search the defendant’s resi-
dence and vehicle, as well as the electronic devices
recovered in the search, and noted that the defendant
had agreed to the search. The court also concluded that
the exclusionary rule did not apply, in any event, under
the circumstances of the present case because the
defendant had presented no evidence of ‘‘egregious,
shocking or harassing police misconduct,’’ and the
record indicated that ‘‘there was no duress, no coercion,
no trickery, no overbearing conduct on the part of pro-
bation in order to effectuate this search.’’ The court
further found that the Office of Adult Probation was
‘‘the one who instigated or started this search process,’’
that Betancourt was ‘‘carrying out his responsibilities
as a probation officer, not as a police officer’’ during
the search process, and that the police ‘‘were [not]
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State v. Sykes

involved to the point that they were the one[s] pushing
or looking for the contents of these computer devices.’’
The court then found that the defendant had violated
his conditions of probation by (1) possessing sexually
explicit materials, some of which involved children, (2)
failing ‘‘to participate in the Office of Adult Probation
order of polygraph and its equivalent, EyeDetect,’’ and
(3) using computers that had not previously been
approved by the Office of Adult Probation. The court
revoked the defendant’s probation and imposed the full
unexecuted portion of his sentence, i.e., eight years of
incarceration.4 The court based its dispositional deter-
mination on several factors, including the seriousness
of the defendant’s original crimes of conviction, the
similarity of the conduct underlying the instant violation
to that for which he was originally charged, the fact
that the defendant had previously been found to have
violated his probation on the basis of what the court
concluded was similar conduct,5 and its conclusion that
the defendant had been ‘‘researching’’ United States v.
Johnson, supra, 446 F.3d 272, which the court surmised
4
The defendant was also charged in a separate information with one
count of possession of child sexual abuse material in the first degree in
violation of General Statutes § 53a-196d (a) (1). On May 23, 2024, following
a jury trial, the defendant was convicted of that charge. State v. Sykes,
Superior Court, judicial district of Fairfield, Docket No. CR-XX-XXXXXXX-T.
On August 1, 2024, the court, Richards, J., sentenced the defendant to
twenty years of incarceration. The defendant’s appeal from that conviction is
currently pending before this court. See generally State v. Sykes, Connecticut
Appellate Court, Docket No. 48055 (appeal filed September 25, 2024).
Because the defendant’s appeal from that conviction remains pending, no
portion of his challenge to the court’s finding in the present case that he
violated his probation is moot. See, e.g., State v. Milner, 130 Conn. App. 19,
26, 21 A.3d 907 (2011), appeal dismissed, 309 Conn. 744, 72 A.3d 1068 (2013).
5
In the affidavit supporting his application for a warrant to arrest the
defendant in connection with this case, Betancourt stated that the defen-
dant’s 2018 violation of probation was predicated on his having been termi-
nated from sex offender treatment, engaging in an undisclosed sexual rela-
tionship with an individual who was also on probation, and using the Internet
without permission.
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State v. Sykes

was an attempt by the defendant to ‘‘[build] a defense’’
for his refusal to take an EyeDetect examination. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
The defendant first claims that the trial court erred
in denying his motion to suppress. Although he
acknowledges that the exclusionary rule ordinarily does
not apply in revocation of probation proceedings, the
defendant argues that application of the exclusionary
rule is warranted in the present case. He further argues
that the court should have suppressed the fruits of the
May 13, 2021 search because the search of his residence
was not supported by reasonable suspicion, his consent
to search was defective, in that he was not properly
advised of the consequences of refusing consent, and
the search was unreasonably expansive in scope. We
conclude that the exclusionary rule does not apply in
the present case, and we therefore reject the defen-
dant’s claim on that basis.
The following legal principles are relevant to our
review of the defendant’s claim. ‘‘[O]ur standard of
review of a trial court’s findings and conclusions in
connection with a motion to suppress is well defined.
A finding of fact will not be disturbed unless it is clearly
erroneous in view of the evidence and pleadings in the
whole record . . . . [When] the legal conclusions of
the court are challenged, [our review is plenary, and] we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the court’s [ruling] . . . .’’ (Internal quotation
marks omitted.) State v. Jones, 281 Conn. 613, 654, 916
A.2d 17, cert. denied, 522 U.S. 868, 128 S. Ct. 164, 169
L. Ed. 2d 112 (2007). It is similarly well established that,
‘‘[i]n a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
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State v. Sykes

weight to be given specific testimony. . . . It is the
privilege of the trial court to adopt whatever testimony
it reasonably believes to be credible, and it is not the
function of this court to retry the facts or pass on the
credibility of a witness.’’ (Citations omitted; internal
quotation marks omitted.) Hallock v. Hallock, 228 Conn.
App. 81, 104, 324 A.3d 193 (2024).
‘‘[U]nlike criminal trials, in which the exclusionary
rule typically applies, in probation revocation hearings,
the exclusionary rule typically does not apply. . . .
Thus, a probationer has the burden of persuading us
that the exclusionary rule should nonetheless apply.’’
(Citation omitted.) State v. Jacobs, 229 Conn. 385, 392,
641 A.2d 1351 (1994); see also Payne v. Robinson, 207
Conn. 565, 571, 541 A.2d 504 (explaining that ‘‘[t]he
purpose of probation revocation proceedings is to
determine whether a probationer is complying with the
conditions of his probation’’ and that, ‘‘[i]n such pro-
ceedings, the government has an interest in accurate
fact-finding that is likely to be impaired when otherwise
reliable and relevant evidence is excluded’’), cert.
denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230
(1988). ‘‘Our bar on the application of the exclusionary
rule to probation revocation proceedings is not absolute
. . . as egregious, shocking or harassing police miscon-
duct would warrant our application of the rule to such
probation proceedings.’’ (Internal quotation marks
omitted.) State v. Maietta, 320 Conn. 678, 686–87, 134
A.3d 572 (2016).6 This court previously has held the
6
The state argues that this statement from Maietta is ‘‘nonbinding dictum’’
that is derived from stale precedent. We disagree. ‘‘Dictum includes those
discussions that are merely passing commentary . . . those that go beyond
the facts at issue . . . and those that are unnecessary to the holding in the
case. . . . [I]t is not dictum [however] [if] a court . . . intentionally takes
up, discusses, and decides a question germane to, though not necessarily
decisive of, the controversy. . . . Rather, such action constitutes an act of
the court [that] it will thereafter recognize as a binding decision.’’ (Emphasis
in original; internal quotation marks omitted.) Healey v. Mantell, 216 Conn.
App. 514, 526, 285 A.3d 823 (2022). Our Supreme Court’s statement in Maietta
that ‘‘egregious, shocking or harassing police misconduct’’ would warrant the
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State v. Sykes

exclusionary rule to be inapplicable, however, when
the challenged search was organized under the auspices
of probation, rather than the police. See, e.g., State v.
Moore, 112 Conn. App. 569, 578, 963 A.2d 1019 (exclu-
sionary rule was inapplicable in revocation of probation
case where ‘‘primary search’’ of defendant’s apartment
was performed by probation officers, even though
police were eventually present and arrested defendant),
cert. denied, 291 Conn. 905, 967 A.2d 1221 (2009); State
v. Fuessenich, 50 Conn. App. 187, 198, 717 A.2d 801
(1998) (court in revocation of probation case improp-
erly applied exclusionary rule to suppress urinalysis
results where probation officer, rather than police,
required defendant to submit urine sample, as ‘‘[t]here
was no police participation in requiring the defendant
to submit to urinalysis, and the probation officer was
acting in accordance with conditions to which the
defendant had agreed’’), cert. denied, 247 Conn. 956,
723 A.2d 813, cert. denied, 527 U.S. 1004, 119 S. Ct.
2339, 144 L. Ed. 2d 236 (1999). As this court explained
in Fuessenich, ‘‘when a probation officer demands a
probationer’s compliance with a condition of probation,
he or she is acting as a representative of the [J]udicial
[B]ranch and not as a police officer. Applying the exclu-
sionary rule to probation revocation hearings would
make it more difficult for probation officers to perform
application of the exclusionary rule in a revocation of probation proceeding
cannot fairly be characterized as mere passing commentary. (Internal quota-
tion marks omitted.) State v. Maietta, supra, 320 Conn. 687. To the contrary,
as we discuss herein, the court in Maietta analyzed whether the record
supported the application of the exclusionary rule by considering whether
it disclosed evidence of egregious, harassing or shocking police misconduct,
reviewing the relevant factual findings, and concluding, on the basis of its
review, that such evidence was wanting. See id., 687–88. ‘‘[T]here is nothing
in [the] opinion . . . to suggest that [this] conclusion was less carefully
reasoned than it might otherwise have been.’’ Rosenthal Law Firm, LLC v.
Cohen, 190 Conn. App. 284, 294, 210 A.3d 579 (2019). We therefore afford
this statement from Maietta the weight it is due as binding precedent of
our Supreme Court.
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State v. Sykes

properly their job of helping to ensure the rehabilitation
of offenders.’’ Id., 199.
The most recent case in which our Supreme Court
has discussed the applicability of the exclusionary rule
in a revocation of probation proceeding is State v.
Maietta, supra, 320 Conn. 678. In Maietta, the defen-
dant’s probation officer sought and received approval
from his superiors to search the defendant’s garage after
receiving information indicating that the defendant was
in possession of firearms. Id., 682–83. With the assis-
tance of three other probation officers, two inspectors
employed by the Office of the Chief State’s Attorney,
members of the Greater New Britain Shooting Task
Force, and an officer with the Berlin Police Department
(collectively, search team), the probation officer trav-
eled to the defendant’s apartment, encountered the
defendant, and obtained the defendant’s consent to
search his garage. Id., 683–84. The defendant traveled
with the search team to his garage and allowed the
members of the search team inside. Id., 684. He identi-
fied a dresser in the garage as containing a firearm. Id.
The probation officers opened the dresser and recov-
ered a firearm. Id. The defendant was subsequently
charged with violating the conditions of his probation
and moved to suppress the firearm as well as his state-
ments to his probation officer and other members of
the search team. Id., 684–85. The trial court denied
the motion to suppress, concluding in part that the
exclusionary rule was inapplicable. Id., 685. The defen-
dant was subsequently found to have violated the condi-
tions of his probation, and he appealed, challenging,
inter alia, the denial of his motion to suppress. Id.
On appeal, our Supreme Court concluded that the
defendant had ‘‘offer[ed] no compelling reasons as to
why the exclusionary rule should apply under the cir-
cumstances of his case.’’ Id., 687. In particular, the court
rejected the defendant’s claim that the search of his
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State v. Sykes

garage was a ‘‘thinly veiled law enforcement search
orchestrated by the police.’’ Id. The court explained
that, according to the trial court’s findings, the defen-
dant’s probation officer was acting in his capacity as a
probation officer when he conducted the searches and
questioned the defendant; and the searches were con-
ducted by probation officers, not the law enforcement
personnel who were present. Id. The court further con-
cluded that ‘‘nothing in the underlying record indicates
that [the probation officers] were conducting the
searches at the behest of the police or for reasons other
than to ensure that the defendant was in compliance
with the terms of his probation.’’ Id. The court also
determined that there was no evidence of ‘‘egregious,
shocking or harassing police misconduct’’ that would
merit the application of the exclusionary rule, noting
that the trial court had found ‘‘no evidence that the
defendant was restrained in any way . . . [or] that
force was used,’’ ‘‘no evidence of overbearing conduct,
[coercion] or duress of any kind,’’ and that ‘‘[t]here
was no pushing, arguing, or harassing the defendant.’’
(Internal quotation marks omitted.) Id., 687–88. To the
contrary, the court concluded, ‘‘the record show[ed]
that the defendant voluntarily allowed [his probation
officer] and his search team into his apartment and the
garage and cooperated with the searches.’’ Id., 688. The
court accordingly concluded that the exclusionary rule
was inapplicable. Id.
The circumstances of the present case cannot mean-
ingfully be distinguished from those of Maietta. The
trial court found—and the defendant does not contest—
that, although the police were present for, and may have
participated in,7 the search, the search was initiated by
and organized under the auspices of the Office of Adult
Probation. This conclusion is well supported by the
7
The precise extent of the police’s involvement in the search is not clear
from the record.
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record. According to Betancourt’s testimony, which the
court credited, the decision to search the defendant’s
apartment was made during a meeting between Betan-
court and his supervisor. Betancourt was also the per-
son who secured the defendant’s signature on the volun-
tary agreement to search form, and the form was signed
in the presence of another probation officer. There is no
indication from the record that Betancourt was acting
in anything other than his capacity as a probation offi-
cer, or for any purpose other than to verify the defen-
dant’s compliance with the conditions of his probation,
when he decided to search the defendant’s residence
and presented him with the consent form.
Moreover, as the court found, the record discloses
no egregious, shocking or harassing police misconduct
in connection with the search. Although the defendant
claims that ‘‘[t]he sheer number of police officers is
shocking and egregious under the circumstances,’’ he
has cited no authority for the proposition that the pres-
ence of an allegedly excessive number of officers during
a search, without more, amounts to egregious police
misconduct. There is a dearth of evidence to suggest
that any of the officers used force against the defendant,
harassed or argued with him, or engaged in any other
unduly coercive behavior in connection with the search.
As such, the defendant has not met his burden to show
that the exclusionary rule should apply. We therefore
need not and do not reach the merits of the defendant’s
arguments pertaining to the existence of reasonable
suspicion, the validity of his consent, or the scope of
the search.8 Because the exclusionary rule does not
8
In his reply brief, the defendant asserts these arguments as further
justification for his claim that the exclusionary rule should apply. These
arguments bear on whether suppression would be warranted in a context
in which the exclusionary rule applied but not on whether the exclusionary
rule should apply in the first instance. See, e.g., State v. Maietta, supra, 320
Conn. 688 n.2 (declining to consider defendant’s arguments that he did not
consent to search and that he was in custody for purposes of Miranda v.
Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), in
light of conclusion that exclusionary rule was inapplicable).
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apply under the circumstances of the present case, the
trial court did not err in denying the defendant’s motion
to suppress.
II
The defendant next claims that there was insufficient
evidence that he violated his probation. We disagree
with this claim because, of the three grounds articulated
by the court for finding the defendant in violation of
his probation, two are supported by sufficient evidence.
However, because the evidence does not support the
court’s conclusion that the defendant violated the con-
dition of his probation requiring him to take a polygraph
examination, and because we cannot be confident that
the court’s clearly erroneous factual finding in connec-
tion with this conclusion did not impact the sentence
it imposed, we set aside the defendant’s sentence and
remand the matter for resentencing.
The following principles are relevant to our review
of the defendant’s claim. ‘‘The law governing the stan-
dard of proof for a violation of probation is well settled.
. . . [A]ll that is required in a probation violation pro-
ceeding is enough to satisfy the court within its sound
judicial discretion that the probationer has not met
the terms of his probation.’’ (Internal quotation marks
omitted.) State v. Eric L., 218 Conn. App. 302, 308, 291
A.3d 621 (2023), rev’d in part on other grounds, 350
Conn. 798, 326 A.3d 225 (2024). ‘‘[E]vidence is not insuf-
ficient [merely] because it is conflicting or inconsistent.
[The fact finder] is free to juxtapose conflicting versions
of events and determine which is more credible. . . .
It is the [fact finder’s] exclusive province to weigh the
conflicting evidence and to determine the credibility of
witnesses. . . . The [fact finder] can . . . decide
what—all, none, or some—of a witness’ testimony to
accept or reject. . . .
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‘‘A challenge to the sufficiency of the evidence is
based on the court’s factual findings. The proper stan-
dard of review is whether the court’s findings were
clearly erroneous based on the evidence. . . . A court’s
finding of fact is clearly erroneous and its conclusions
drawn from that finding lack sufficient evidence when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . [A] trial court may not find a violation
of probation unless it finds that the predicate facts
underlying the violation have been established by a
preponderance of the evidence at the hearing—that is,
the evidence must induce a reasonable belief that it is
more probable than not that the defendant has violated
a condition of his or her probation. . . . In making its
factual determination, the trial court is entitled to draw
reasonable and logical inferences from the evidence.’’
(Citations omitted; internal quotation marks omitted.)
State v. Santos, 108 Conn. App. 250, 253–54, 947 A.2d
414 (2008). ‘‘This court has observed that to support a
judgment of revocation of probation, [o]ur law does
not require the state to prove that all conditions alleged
were violated; it is sufficient to prove that one was
violated.’’ (Internal quotation marks omitted.) State v.
Wells, 112 Conn. App. 147, 156, 962 A.2d 810 (2009).

As we previously have explained, the trial court found
that the defendant had violated the conditions of his
probation in three ways: (1) possessing sexually explicit
materials, some of which involved children; (2) failing
‘‘to participate in the Office of Adult Probation order
of polygraph and its equivalent, EyeDetect’’; and (3)
using computers that had not previously been approved
by the Office of Adult Probation. The defendant chal-
lenges each finding. We conclude that there is sufficient
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evidence to support the first and third findings, but not
the second.9
A
With respect to the trial court’s finding that the defen-
dant possessed sexually explicit materials, the defen-
dant argues that ‘‘there was insufficient evidence to
connect [him] to the images in question’’ because ‘‘there
was nothing presented at the violation of probation
proceeding to indicate when the images were put on the
device, when they were last accessed, or who accessed
them.’’ He further points out that, during the revocation
of probation hearing, DiPietro acknowledged on cross-
examination that the data reflecting when the materials
recovered from the seized devices were created and
accessed could be manipulated and that anyone with
administrative rights could have created the folder
labeled ‘‘sykesp’’ on the computer from which many of
the images were recovered. We are not persuaded.
‘‘The term [p]ossess [under General Statutes § 53a-3
(2)] means to have physical possession or otherwise to
exercise dominion or control over tangible property
. . . . [C]onstructive possession is possession without
direct physical contact. . . . It can mean an apprecia-
ble ability to guide the destiny of the [contraband] . . .
and contemplates a continuing relationship between
the controlling entity and the object being controlled.
. . . To establish constructive possession, the control
must be exercised intentionally and with knowledge
of the character of the controlled object.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Dawson, 340 Conn. 136, 147–48, 263 A.3d 779 (2021).
‘‘To mitigate the possibility that innocent persons might
be prosecuted for . . . possessory offenses . . . it is
essential that the state’s evidence include more than
9
In the following analysis, we address the grounds found by the court in
a different order than that in which they were set forth in its oral ruling.
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just a temporal and spatial nexus between the defendant
and the contraband. . . . While mere presence is not
enough to support an inference of dominion or control,
where there are other pieces of evidence tying the
defendant to dominion and control, the [finder of fact
is] entitled to consider the fact of [the defendant’s]
presence and to draw inferences from that presence
and the other circumstances linking [the defendant] to
the crime.’’ (Internal quotation marks omitted.) State
v. Spence, 165 Conn. App. 110, 124, 138 A.3d 1048, cert.
denied, 321 Conn. 927, 138 A.3d 287 (2016).
In the present case, there was sufficient evidence in
the record to support the trial court’s conclusion that
the defendant possessed sexually explicit materials,
some of which involved children. The devices con-
taining those materials were recovered from a search
of the defendant’s residence. See, e.g., State v. Smith,
94 Conn. App. 188, 193, 891 A.2d 974 (‘‘[o]ne factor that
may be considered in determining whether a defendant
is in constructive possession of narcotics is whether
he is in possession of the premises where the narcotics
are found’’ (internal quotation marks omitted)), cert.
denied, 278 Conn. 906, 897 A.2d 100 (2006). The defen-
dant also had signed a computer access agreement in
which he assumed responsibility for the contents of
any electronic storage medium under his control. Fur-
thermore, suspected child pornography and child
exploitation material was found on a seized laptop with
a user account named ‘‘sykesp’’—the defendant’s last
name and first initial. The seized devices also contained
other materials linking them to the defendant, including
receipts from the defendant’s prior place of residence
and medical documentation bearing the defendant’s
address. The court was entitled logically to infer, on
the basis of all of this evidence, that the defendant was
in possession of the offending materials, and the court
was not required to credit the defendant’s speculative
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State v. Sykes

suggestions that someone else might have accessed
those materials, put them on the device, and/or created
a user account in his name. The defendant’s challenge
to the court’s finding therefore fails.
B
With respect to the court’s finding that the defendant
utilized unapproved computers, the defendant claims
that the evidence shows that he worked in the informa-
tion technology field and that he was permitted to work
on electronic devices from home for the purposes of
employment. He further claims that there is no evidence
that the seized devices were not devices that he was
working on for his job. We are not persuaded.
The following additional procedural history is rele-
vant to this claim. Betancourt testified in the revocation
of probation hearing that, of the thirty-five devices that
were seized from the defendant’s residence, the defen-
dant was approved by probation to possess only three.
Betancourt’s subsequent testimony explaining and elab-
orating on this conclusion, elicited through multiple
rounds of recross and redirect examination as well as
questioning by the court, was admittedly not a model
of clarity. He acknowledged that the defendant worked
in the information technology field. He testified at one
point that, if the seized devices were for the purposes
of the defendant’s employment, ‘‘I believe [he would be
permitted to possess them]. Yeah. It’s—there probably
should have been a list of different things, right, as far
as those devices. We have no—at that point we had
no—they were not authorized in our eyes.’’ He then
testified that, whether or not the seized devices were
being used for the defendant’s employment, they still
had to be approved by the Office of Adult Probation,
and he had no documentation or memory of the defen-
dant ever having sought that approval. He then testified
that, ‘‘based on the conditions,’’ i.e., under the computer
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State v. Sykes

access agreement, the Office of Adult Probation should
have been provided with a list of the devices that the
defendant was working on for his employment. He then
testified that the defendant had previously provided a
list of devices in his possession to another probation
officer and that he ‘‘[didn’t] believe’’ that any of the
items on that list corresponded to items seized during
the May 13, 2021 search, ‘‘but [he would] have to see
the list again.’’ He stated that he had not brought a copy
of the list with him.
Notwithstanding the imprecision of this testimony,
the court reasonably could have concluded that, even
if the defendant generally was authorized to work on
computers for purposes of employment, he nonetheless
was required to seek approval from the Office of Adult
Probation to use the specific devices on which he was
working. See, e.g., State v. Santos, supra, 108 Conn.
App. 253 (evidence is not insufficient merely because
it is conflicting or inconsistent). The court further rea-
sonably could have found, as Betancourt testified, that
the vast majority of the devices seized from the defen-
dant’s residence had not been so approved. These con-
clusions are supported by evidence in the record, and
we are not left with a definite and firm conviction that
a mistake has been committed. The evidence was suffi-
cient for the court to conclude that the defendant vio-
lated the condition of his probation requiring that he use
only those computers approved by his probation officer.
C
Finally, the defendant claims that the evidence was
insufficient to support the court’s conclusion that he
violated the condition of his probation requiring him
to take polygraph examinations. We agree.
In concluding that the defendant had violated this
condition, the court stated that the defendant had
‘‘failed to participate in the Office of Adult Probation
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State v. Sykes

order of polygraph and its equivalent, EyeDetect.’’ As
the defendant correctly points out—and as Betancourt
acknowledged in his testimony—the condition of pro-
bation requiring the defendant to take polygraph exami-
nations did not require him to take a polygraph examina-
tion ‘‘[or] its equivalent, EyeDetect.’’ It simply required
him to take polygraph examinations. In finding that the
defendant’s refusal to take an EyeDetect examination
violated this condition, the court therefore was required
to conclude that an EyeDetect examination amounted
to a type of polygraph examination and/or was suffi-
ciently similar to a polygraph such that the condition
requiring the defendant to take polygraph examinations
afforded him fair notice that refusal to take an EyeDe-
tect examination would violate that condition. See, e.g.,
State v. Boseman, 87 Conn. App. 9, 22–23, 863 A.2d 704
(2004) (assessing whether, in absence of modification
of condition or new condition imposed by probation
officer, probation condition imposed by court could
reasonably be interpreted to prohibit defendant’s
behavior, in light of due process requirement of fair
notice), cert. denied, 272 Conn. 923, 867 A.2d 838 (2005).
Indeed, the court’s description of EyeDetect as the
‘‘equivalent’’ of a polygraph examination indicates that
it did make such a finding.10
10
In finding the defendant in violation of probation, the court stated that
the defendant had ‘‘failed to participate in the Office of Adult Probation
order of polygraph and its equivalent, EyeDetect.’’ (Emphasis added.) To
the extent that the court concluded that compliance with the EyeDetect
examination was a valid condition imposed on the defendant by the Office
of Adult Probation pursuant to its authority under General Statutes § 53a-
30 (b) to ‘‘require that the defendant comply with any or all conditions
which the court could have imposed . . . which are not inconsistent with
any condition actually imposed by the court,’’ we disagree. There was no
evidence before the court that Betancourt actually imposed such a condition
on the defendant. See, e.g., State v. Boseman, supra, 87 Conn. App. 22 (where
‘‘the specific condition the court found the defendant to have violated could
not be interpreted reasonably to prohibit his behavior, and [the defendant’s
probation officer] did not provide a written modification of that condition
or a new condition, we conclude that the defendant was not afforded actual,
fair and sufficient notice’’ that conduct would constitute violation). Betan-
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24 ,0 0 Conn. App. 1
State v. Sykes

The record, however, is devoid of evidence that
would support such a conclusion. It is not at all clear
from the record what an EyeDetect examination is, how
it functions, or the extent to which it is similar to a, and/
or can be classified as a type of, polygraph examination.
Betancourt testified that The Connection was using
EyeDetect examinations in place of polygraph examina-
tions in light of the COVID-19 pandemic but character-
ized an EyeDetect examination and a polygraph exami-
nation as ‘‘two different things.’’ Neither Betancourt’s
nor DiPietro’s testimony elaborated any further on the
nature of an EyeDetect examination. Nor does the state,
in its brief, direct our attention to anything else in the
record that would shed light on this critical factual
question.11 Of course, because this court is not a fact-
finding tribunal, in conducting our sufficiency analysis
we may not draw our own conclusions, on the basis
court testified that he and the defendant had a conversation regarding the
defendant’s refusal to take the EyeDetect examination but did not testify
that he issued the defendant any clear warnings that his refusal could
constitute a violation of his conditions of probation. Cf. State v. Reilly, 60
Conn. App. 716, 732–33, 760 A.2d 1001 (2000) (‘‘[i]n revocation hearings
where the alleged violative behavior is noncriminal, we hold that where the
specific condition did not explicitly proscribe the defendant’s conduct and
could not be reasonably interpreted to proscribe the defendant’s conduct,
the defendant must receive actual notice that the continuation of the conduct
could result in a charge of a violation of a condition of probation’’). The
record does reflect that The Connection issued the defendant a warning
letter following his refusal to take the EyeDetect examination, but the state
identifies no authority, and we are aware of none, that would permit a
third-party treatment provider—rather than the court or the Office of Adult
Probation—unilaterally to modify a defendant’s conditions of probation.
Moreover, as discussed further herein, we emphasize that the arrest warrant
did not allege that the defendant violated a condition of his probation on
the basis of his failure to comply with treatment.
11
We note that the polygraph condition also required that the defendant’s
polygraph examinations be administered by a ‘‘[Court Support Services
Division] approved, specially trained’’ examiner. There is no evidence in
the record regarding the qualifications of the individual responsible for
administering the EyeDetect examination to the defendant or indicating
whether that individual had been approved to do so by the Court Support
Services Division.
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of extrarecord evidence, about the similarities and/or
differences between an EyeDetect examination and a
polygraph examination. See, e.g., Williams v. Commis-
sioner of Correction, 177 Conn. App. 321, 331–32, 175
A.3d 565 (‘‘[I]t is not the function of this court . . . to
make factual findings . . . . Conclusions of fact may
be drawn on appeal only where the subordinate facts
found [by the trial court] make such a conclusion inevi-
table as a matter of law . . . or where the undisputed
facts or uncontroverted evidence and testimony in the
record make the factual conclusion so obvious as to
be inherent in the trial court’s decision.’’ (Emphasis
omitted; internal quotation marks omitted.), cert.
denied, 327 Conn. 990, 175 A.3d 563 (2017). We therefore
conclude that the court’s factual finding that an EyeDe-
tect examination was the ‘‘equivalent’’ of a polygraph
examination—a finding necessary to its determination
that the defendant violated the condition of his proba-
tion requiring him to take polygraph examinations—
was clearly erroneous because there was no evidence
in the record to support it.
The state attempts to circumvent this evidentiary
deficiency by arguing that the defendant’s conditions
of probation also required him to submit to any and all
conditions of his sex offender treatment, as well as
to medical and/or psychological examinations and/or
counseling sessions, and that compliance with these
conditions required submitting to the EyeDetect exami-
nation—which was administered by the defendant’s sex
offender treatment provider. Betancourt’s application
for an arrest warrant, however, did not allege a violation
of probation based on the defendant’s failure to comply
with the conditions of his probation requiring sex
offender treatment, counseling, and/or medical or psy-
chological examinations. Due process requires that the
defendant have notice of the conditions of probation
that he is alleged to have violated. See, e.g., State v.
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Orr, 199 Conn. App. 427, 450–51, 237 A.3d 15 (2020)
(disregarding court’s findings, in revocation of proba-
tion case, that defendant had violated criminal statutes
that were not enumerated in arrest warrant applica-
tion); State v. Carey, 30 Conn. App. 346, 349, 620 A.2d
201 (1993) (‘‘a defendant cannot be found in violation
of probation on grounds other than those with which
he is charged’’), rev’d on other grounds, 228 Conn. 487,
636 A.2d 840 (1994). We therefore reject the state’s
argument.
In sum, because a key factual finding underpinning
the court’s determination that the defendant violated
the condition of his probation requiring him to take
polygraph examinations—namely, that an EyeDetect
examination is the ‘‘equivalent’’ of a polygraph examina-
tion—is not supported by the record, there was insuffi-
cient evidence that the defendant violated this condition
of his probation.
D
We now turn to the scope of our remand. There was
sufficient evidence from which the court reasonably
could have concluded that the defendant violated two
of the three conditions of his probation that it found
him to have violated, and, therefore, there was sufficient
evidence that the defendant violated the conditions of
his probation. See, e.g., State v. Lanagan, 119 Conn.
App. 53, 62, 986 A.2d 1113 (2010); State v. Wells, supra,
112 Conn. App. 156. We conclude, however, that, under
the circumstances of this case, because there was insuf-
ficient evidence to support the court’s conclusion that
the defendant violated his polygraph condition, the
appropriate course is to set aside the defendant’s sen-
tence and remand for resentencing.
We are guided by our Supreme Court’s decision in
State v. Benjamin, 299 Conn. 223, 9 A.3d 338 (2010).
In Benjamin, our Supreme Court considered the appeal
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State v. Sykes

of a defendant who had been found in violation of his
probation on two grounds: that he had assaulted an
elderly person and that he had possessed narcotics. Id.,
225. On appeal to this court, the defendant did not
challenge the latter finding but argued that the former
was predicated on improperly admitted and otherwise
insufficient evidence; he further claimed that the trial
court had abused its discretion by imposing a four year
term of incarceration that was based, in part, on its
conclusion that he had assaulted an elderly person. Id.,
226. This court concluded that it was unnecessary to
review the defendant’s challenges to the trial court’s
finding that he had assaulted an elderly person because
the trial court’s unchallenged finding that the defendant
had possessed narcotics constituted a legally sufficient
basis for revoking his probation. Id. Our Supreme Court
disagreed. The court explained that this court had
‘‘failed to recognize that the defendant’s briefing . . .
also addressed the dispositional phase of the probation
proceeding. . . . Presumably, in the dispositional
phase, the question of whether, in addition to pos-
sessing narcotics, the defendant also had committed
the assault would have had some bearing on which
disposition the court ordered and, if the court ordered
the defendant to serve some portion of his suspended
sentence as to that disposition, what that sentence
would be.’’ (Citation omitted; emphasis in original; foot-
note omitted.) Id., 231–32. The court went on to con-
clude that there had been sufficient evidence that the
defendant was guilty of assaulting an elderly person,
noting that that determination ‘‘obviate[d] the need for
this court to direct the Appellate Court to remand the
case to the trial court for a new dispositional phase
. . . to consider whether the sentence based solely on
the defendant’s possession of narcotics was appropriate
or whether to reduce the sentence in the absence of
sufficient evidence of assault.’’ Id., 234 n.6.
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28 ,0 0 Conn. App. 1
State v. Sykes

In the present case, the record indicates that the
court’s dispositional determination may have been
impacted by its conclusion that the defendant had vio-
lated his polygraph condition. In particular, the court’s
comments that the defendant had been ‘‘researching’’
United States v. Johnson, supra, 446 F.3d 272, in a
possible attempt to ‘‘[build] a defense’’ for refusing to
take the EyeDetect examination, suggest that it may
have viewed the defendant’s refusal to ‘‘take a poly-
graph examination [or] its equivalent’’ as bad faith mis-
conduct warranting the imposition of a more severe
sentence than he might otherwise have received. At the
very least, we cannot be confident that the court would
not have exercised its discretion differently in the dispo-
sitional phase had it sentenced the defendant only on
the basis of the two grounds for finding the defendant
in violation of his probation that were sufficiently sup-
ported by the record. See also, e.g., State v. Johnson,
75 Conn. App. 643, 660, 817 A.2d 708 (2003) (remanding
revocation of probation case for resentencing where
trial court, in imposing sentence, considered defen-
dant’s refusal to sign forms that he was under no obliga-
tion to sign, and explaining that ‘‘we have no way of
determining whether the court, in exercising its discre-
tion, would have imposed the same sentence if . . .
[the forms] were not an issue in the proceeding’’).
We therefore conclude that a remand for resentenc-
ing is appropriate in light of our conclusion that the
evidence was insufficient to support the court’s finding
that the defendant violated the condition of his proba-
tion requiring him to take polygraph examinations. In
remanding the matter for resentencing, we express no
view as to the appropriate sentence, and we commit
that determination to the sound discretion of the trial
court. See, e.g., Miller v. Commissioner of Correction,
29 Conn. App. 773, 780, 617 A.2d 933 (1992) (‘‘[t]he
imposition of an appropriate sentence is the function
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State v. Sykes

of the trial court, and not our function’’). On remand,
the court may, ‘‘[o]n the basis of its consideration of
the whole record . . . continue or revoke the sentence
of probation . . . [and] . . . require the defendant to
serve the sentence imposed or impose any lesser sen-
tence. . . . In making this second determination, the
trial court is vested with broad discretion. . . . In
determining whether to revoke probation, the trial court
shall consider the beneficial purposes of probation,
namely rehabilitation of the offender and the protection
of society. . . . The important interests in the proba-
tioner’s liberty and rehabilitation must be balanced,
however, against the need to protect the public.’’ (Inter-
nal quotation marks omitted.) State v. Mapp, 118 Conn.
App. 470, 478, 984 A.2d 108 (2009), cert. denied, 295
Conn. 903, 988 A.2d 879 (2010).
The judgment is reversed only as to the sentence
imposed and the case is remanded with direction to
resentence the defendant; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.