Greer v. State

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DANIEL GREER v. STATE OF CONNECTICUT
(AC 46055)
Cradle, Westbrook and DiPentima, Js.

Syllabus

The petitioner, who had previously been convicted of four counts of the
crime of risk of injury to a child, sought a new trial on the basis of
allegedly newly discovered evidence that, if credited by a jury, would
support a finding that he was innocent of the charges against him. The
petitioner was a rabbi, dean and teacher at a private, Orthodox Jewish
school when he sexually abused the victim, E, a student at the school,
on various dates in 2002 and 2003, when E was fourteen and fifteen
years old. The purported new evidence came to light as a result of
testimony given by H, a rabbi and an assistant dean at the school when
E attended, during a deposition in a federal civil lawsuit that E had
brought against the petitioner. H testified in his deposition that he had
had a sexual relationship with the petitioner that started when H himself
was a student at the school. H also testified that he was involved in a
sexual relationship with the petitioner at the same time that the peti-
tioner was abusing E. The petitioner argued that H’s testimony at a new
trial would establish with certainty that any sexual misconduct by the
petitioner toward E could not have begun until after E’s sixteenth birth-
day. It was an essential element of the crime for which the petitioner
had been convicted, risk of injury to a child under the applicable statute
(§ 53-21 (a) (2)), that E had been under the age of sixteen at the time
of the petitioner’s sexual misconduct. The petitioner attached to his
petition for a new trial an affidavit sworn by H that stated, to H’s
knowledge, no acts of misconduct by the petitioner toward E occurred
prior to E’s sixteenth birthday. At the trial on the petition, H testified,
inter alia, that E had called him sometime during the winter of 2020 to
2021 to ask if he had been ‘‘really under sixteen at the time.’’ The court
denied the petition for a new trial and, in its memorandum of decision,
noted that the petitioner’s defense strategy had changed since his crimi-
nal trial, at which his primary defense had been to attack E’s credibility
and, by implication, the veracity of his allegations of sexual abuse. The
court noted that the petitioner now conceded that some of the alleged
sexual acts with E had occurred but only after E had turned sixteen
years old. The court stated that H had admitted in his testimony at
trial that he had not been present during any sexual acts between the
petitioner and E. Held that the trial court did not abuse its discretion
in determining that the petitioner’s purported new evidence, which con-
sisted wholly of H’s affidavit and testimony, would not, if introduced
at a new trial, likely result in a different outcome, and, accordingly,
properly denied the petition for a new trial: contrary to the petitioner’s
claim, the court gave due consideration to H’s testimony regarding E’s
statement to him because the court specifically addressed that aspect
of the new evidence in its memorandum of decision and concluded that
the evidence would have done little to undermine the clear evidence in
the criminal trial that E was indeed under the age of sixteen when he
was sexually assaulted by the petitioner, and the court did not, as
suggested by the petitioner, fail to recognize the significance of E’s
posttrial uncertainty as to how old he was when the sexual assault
started, rather, the court simply was unconvinced that a jury hearing
the evidence would have reached a different conclusion regarding the
petitioner’s guilt in light of the totality of the evidence presented, and
the court’s overall finding that H’s testimony lacked credibility, and thus
was unlikely to be credited by a jury, applied equally to his testimony
regarding the alleged new statement by E; moreover, E’s purported
statement to H was vague, as E never affirmatively stated that he was
sixteen years old or older when the petitioner first abused him, and, at
best, his statement indicated possible confusion or doubt on E’s part,
but it certainly did not amount to a retraction of his trial testimony that
helped to establish a timeline from which the jury reasonably could
have found that his sexual abuse by the defendant started prior to E
turning sixteen years old, and the only evidence before the court regard-
ing the exact wording and context of E’s purported posttrial statement
to H was H’s testimony, which the petitioner did not present any evidence
to corroborate; furthermore, it was axiomatic that this court, in
reviewing a trial court’s decision on a petition for a new trial based
upon newly discovered evidence could not substitute its own assessment
as to the proper weight, if any, to be given to any piece of evidence
offered or to revisit a trial court’s assessment regarding the credibility
of a witness, and the trial court provided a number of reasons why H
was not a credible witness, including that H admitted that he had evaded
service of process in both the federal civil action and the criminal trial,
further weakening the persuasiveness of H’s testimony and making it
less likely that a jury would find his testimony credible.
Argued November 15, 2023—officially released February 27, 2024

Procedural History

Petition for a new trial following the petitioner’s con-
viction of four counts of the crime of risk of injury to
a child, brought to the Superior Court in the judicial
district of New Haven, where the matter was tried to the
court, Hon. Jon C. Blue, judge trial referee; judgment
denying the petition for a new trial, from which the
petitioner, on the granting of certification, appealed to
this court. Affirmed.
David T. Grudberg, for the appellant (petitioner).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were John P. Doyle, Jr.,
state’s attorney, and Seth R. Garbarsky and Craig P.
Nowak, supervisory assistant state’s attorneys, for the
appellee (respondent).
Opinion

WESTBROOK, J. The petitioner, Daniel Greer, appeals
following the granting of his petition for certification
to appeal from the judgment of the trial court denying
his petition for a new trial based on newly discovered
evidence. On appeal, the petitioner claims that the court
improperly concluded that the proffered new evidence
likely would not lead to a different result at a new trial
because the court (1) failed to give sufficient weight to
an alleged posttrial statement by the victim that the
petitioner asserts raises doubt regarding an essential
element of the crimes underlying his conviction, and
(2) erroneously determined that, even if a new trial
was granted, it was unlikely that the defense would
introduce the new evidence because it was highly preju-
dicial to the petitioner and, thus, would undermine,
rather than aid, his defense. For the reasons that follow,
we are not persuaded that the court abused its discre-
tion by denying the petition for a new trial. Accordingly,
we affirm the judgment of the court.
This court, in its decision affirming the petitioner’s
judgment of conviction on direct appeal, set forth the
following relevant facts and procedural history underly-
ing the petitioner’s criminal case. See State v. Greer,
213 Conn. App. 757, 759–64, 279 A.3d 268, cert. denied,
345 Conn. 916, 284 A.3d 299 (2022), cert. denied,
U.S. , 143 S. Ct. 1061, 215 L. Ed. 2d 282 (2023). ‘‘The
[petitioner], who is a rabbi, founded Yeshiva of New
Haven, Inc. (yeshiva), a private, Orthodox Jewish
school, and served as a dean, rabbi, and teacher at the
yeshiva. The victim, E,1 attended the yeshiva for high
school, beginning his freshman year in August or Sep-
tember, 2001, when he was thirteen years old. E’s birth-
day is in October, and he turned fourteen years old
during his freshman year. . . .
‘‘In 2002, when he was fourteen years old, E returned
to the yeshiva for his sophomore year. At some point
during the beginning of the school year, the [petitioner]
told E to meet him at an apartment adjacent to the
school, and E complied. At the apartment, the [peti-
tioner] offered E [snacks] and an alcoholic drink . . . .
They proceeded to drink and talk about E’s family and
his future, and E began to get emotional and his head felt
‘fuzzy . . . .’ At some point, the [petitioner] touched
E’s thigh or crotch area and attempted to kiss him on
the lips. When E pulled away and asked the [petitioner]
what he was doing, the [petitioner] said that ‘[i]t wasn’t
a big deal and that this is what he does to his kids.’
Nothing further transpired, and E returned to his dormi-
tory.
‘‘After the initial incident at the apartment, E and
the [petitioner] met at least once a week during his
sophomore year at various locations—often in New
Haven or at a motel in Branford—and engaged in oral
or anal sex. During these encounters, the [petitioner]
and E often would consume alcohol. E acknowledged
that ‘the encounters meld together’ but was ‘very sure’
that he and the [petitioner] engaged in anal and oral
sex during his sophomore year, during which time he
was fourteen and fifteen years old. He testified that,
during that period, he and the [petitioner] frequently
performed oral sex on each other, that he performed
anal sex on the [petitioner] ‘many’ times, and that, when
the [petitioner] attempted to perform anal sex on E, E
forced him to stop because it was too painful. After
these encounters, E would feel ‘shame, guilt, [and] con-
fusion.’ At the yeshiva, the [petitioner] gave E preferen-
tial treatment and would not yell at him as he regularly
did with other students. When E attempted to end the
sexual relationship, the [petitioner] stopped giving him
preferential treatment and became ‘nasty’ instead of
‘nice and charming . . . .’ The [petitioner] continued
to engage in sexual acts with E after he turned sixteen
years old in October, 2003.
‘‘After graduating in 2005, E went to an Orthodox
yeshiva in Israel to continue his Jewish studies and met
S, his future wife . . . . In 2006, E told S that the [peti-
tioner] had molested him during high school, but he
did not provide any details about the abuse. In the
summer of 2006, E returned to Connecticut and met
the [petitioner] at the Branford motel, where they had
their last sexual encounter.
‘‘In December, 2007, E and S were married, and the
[petitioner] was one of the witnesses at the ceremony,
which is a position of honor. E explained that he gave
the [petitioner] this honor because he respected the
[petitioner] and ‘still felt part of the New Haven commu-
nity . . . .’ For several years following their marriage,
E and S would travel to New Haven for Jewish holidays,
where they would share meals with members of the
yeshiva community, including the [petitioner]. When E
and S had a son in June, 2010, E asked the [petitioner]
to hold the baby during the circumcision, which is also
a position of honor.
‘‘In 2013, E and S bought a house in New Jersey, and
E found a rabbi in that community. Around that time,
E stopped traveling to New Haven and communicating
with the [petitioner]. At some point before 2016, E dis-
closed the abuse to his therapist and two family friends,
one of whom was working at the yeshiva. In May, 2016,
E filed a civil action in federal court against the [peti-
tioner] seeking money damages stemming from the sex-
ual abuse.2 In August, 2016, while the civil action was
pending, E reported the sexual abuse to the New Haven
Police Department.
‘‘On July 26, 2017, the [petitioner] was arrested and
charged with four counts of sexual assault in the second
degree under General Statutes § 53a-71 (a) (1) and four
counts of risk of injury to a child under [General Statutes]
§ 53-21 (a) (2). In the operative long form information,
the state alleged that the charged conduct occurred when
E was fourteen and fifteen years old, ‘at the city of New
Haven on divers dates between 2002 up to October 27,
2003’ . . . . [T]he sexual assault and risk of injury
charges were premised on the same conduct—anal
intercourse and fellatio.
‘‘The case proceeded to a jury trial, and, at the close
of evidence, defense counsel moved for a judgment of
acquittal as to the charges of sexual assault in the sec-
ond degree on the ground that the prosecution was
barred by the statute of limitations set forth in § 54-
193a because E had not notified a police officer or
state’s attorney within five years after the commission
of the offense. After a brief recess, the state conceded
that the sexual assault charges are barred under § 54-
193a, and the court granted the motion for a judgment
of acquittal as to the four counts of sexual assault in
the second degree . . . . Thereafter, the state filed a
new information limited to the four counts of risk of
injury to a child, and the jury found the [petitioner]
guilty of those charges.’’3 (Footnote added; footnote
in original; footnotes omitted.) Id., 759–63. The court
thereafter sentenced the petitioner to twenty years of
incarceration, execution suspended after twelve years,
followed by ten years of probation. Id., 764.
On November 12, 2021, the petitioner commenced
the underlying action pursuant to Practice Book § 42-
55 and General Statutes § 52-270.4 In the operative
amended petition for a new trial, filed on September
28, 2022,5 the petitioner argued that he was entitled to
a new trial on the basis of newly discovered evidence.
According to the petitioner, the new evidence, if cred-
ited by a jury, would support a finding that the petitioner
‘‘was factually innocent of the charges against him.’’
The purported new evidence came to light as a result
of testimony given by another rabbi, Aviad Hack, during
a deposition in the federal civil lawsuit. Hack had ‘‘deep
familiarity’’ with both E and the petitioner. Hack had
been the assistant dean for the yeshiva at the time E
attended, and, according to Hack, at the same time that
the petitioner had been abusing E, the petitioner also
was involved in a sexual relationship with Hack that
had started when Hack himself was a student at the
yeshiva. The petitioner argued that Hack’s testimony
at a new trial would establish ‘‘with certainty’’ that any
sexual misconduct by the petitioner toward E could
not have begun until after E’s sixteenth birthday. An
affidavit sworn by Hack and dated October 29, 2021,
was attached to the original petition for a new trial. In
this affidavit, Hack averred that he had given deposition
testimony in E’s federal civil action but that he later
evaded service of process in both the federal action
and the state court criminal trial. He further stated in
his affidavit that, ‘‘to my knowledge, no acts of miscon-
duct by [the petitioner] toward [E] occurred prior to
[E’s] 16th birthday. The first such act, to my memory,
occurred in or about January, 2004.’’ (Emphasis added.)
It was an essential element of the risk of injury to a
child counts of which the petitioner was convicted that
the child be ‘‘under the age of sixteen years . . . .’’
(Emphasis added.) General Statutes § 53-21 (a) (2).6 It
is undisputed that E was sixteen years old in Janu-
ary, 2004.
The court, Hon. Jon C. Blue, judge trial referee, con-
ducted a trial on the petition for a new trial on July 20
and September 23, 2022. In support of his petition, the
petitioner presented testimony from himself and Hack,
who testified, inter alia, regarding his civil deposition
testimony and the factual basis for the statements in
his affidavit regarding E’s age. The respondent, the State
of Connecticut, called no witnesses of its own. Follow-
ing the trial, the parties submitted simultaneous post-
trial briefs, and the petitioner thereafter submitted a
reply brief. The court heard additional postevidence
arguments on November 9, 2022.
On November 17, 2022, the court issued its second
corrected memorandum of decision in which it denied
the amended petition for a new trial. The court first
noted that the petitioner’s defense strategy had changed
since his criminal trial at which his primary defense
was to attack E’s credibility and thus, by implication,
the veracity of his allegations of sexual abuse. The court
also noted that the petitioner was now conceding that
some of the alleged sexual acts occurred, but only after
E had turned sixteen. The court next turned to a discus-
sion of the petitioner’s proffered new evidence, which
the court found less than compelling for several rea-
sons. The court explained in part: ‘‘The evidence submit-
ted to establish [the petitioner’s] new [theory of
defense] is the testimony of [Hack and his affidavit].
. . . Hack’s affidavit is cautiously worded—the phrases
‘to my knowledge’ and ‘to my memory’ allow for a great
deal of wiggle room. The obvious question that arises
is ‘How does he know?’ His testimony on the stand
failed to answer this question satisfactorily.
‘‘Hack admitted in his testimony that he had not been
present during any sexual acts between [the petitioner]
and E. He additionally admitted that he had not been
present with E twenty-four hours a day, seven days a
week during the time in question. It is clear that all
manner of sexual misconduct could have occurred
between [the petitioner] and E prior to E’s sixteenth
birthday that Hack simply would not have observed or
known of.
‘‘Hack’s ‘knowledge’ turns out to be a series of infer-
ences, some of them quite thin. He reasoned that since
[the petitioner] had not sexually abused him prior to his
sixteenth birthday, the same pattern would necessarily
apply to E. On cross-examination, however, Hack
admitted that [the petitioner] had ‘groomed’ him prior
to his sixteenth birthday. In addition, [the petitioner]
first abused Hack in 1992, whereas E testified [at the
criminal trial] that [the petitioner] had first abused him
. . . a decade later, [and] so it is not unreasonable to
conclude that [the petitioner’s] seduction timetable may
have altered in the intervening years.
‘‘Hack testified that one location at which he and [the
petitioner] had (adult) sexual relations was 139 West
Park. On one occasion, apparently in late fall 2003, [the
petitioner] told Hack, ‘I was just here with [E].’ . . .
Assuming this to be true, this statement hardly estab-
lishes that [the petitioner] had been there with E for
the first time, or even were that to be the case, that
[the petitioner] and E had not previously engaged in
sexual acts in a variety of other locations.
‘‘Hack’s additional theory is that [the petitioner] could
not have engaged in sexual acts with E prior to October
27, 2003, because [the petitioner] ‘detested’ E until later
in the academic year. The flaw in this theory is obvious.
[The petitioner’s] relationship with E was not a relation-
ship based on love. It was a relationship based on preda-
tion. [The petitioner] may not have liked E but neverthe-
less found him to be a convenient object of sexual
desire.
‘‘Hack additionally testified that E called him during
the winter of 2020–2021 and asked Hack whether [E]
was ‘really under sixteen at the time.’ This purported
statement does not amount to a retraction of E’s clear
evidence in the criminal trial that E was indeed under
the age of sixteen when he was sexually assaulted by
[the petitioner].
‘‘In addition to obvious logical issues with his theo-
ries, Hack turns out to have credibility issues as well.
He admits that he repeatedly evaded service of process
in both the federal and state actions. His testimony that
coming forth at this late date was the ‘right’ thing to
do rests uneasily with his deliberate failure to accept
service of process on occasions when coming forth
would have been yet more ‘right.’
‘‘Beyond this, on cross-examination, Hack admitted
to a remarkable series of events. Sometime after the
federal court awarded E over $21 million in damages
against [the petitioner] for sexual abuse, [the petitioner]
brought an action against Hack in a rabbinical court,
called a Din Torah, alleging that Hack was liable to [the
petitioner] for the full amount of the judgment. The last
hearing in the rabbinical court was in the summer of
2021. Although Hack’s testimony leaves the exact litiga-
tional details murky . . . he and [the petitioner]
reached a settlement in the fall of 2021 in which Hack
agreed to sign an affidavit and appear in court to give
his testimony in the present case.’’ In short, the court
found significant issues regarding Hack’s credibility
that further weakened the persuasiveness of his testi-
mony.
For purposes of its analysis, the court assumed with-
out deciding that the petitioner had established that the
evidence he proffered in support of his petition for a
new trial was, in fact, newly discovered; that the evi-
dence would be material in a new trial; and that it was
not merely cumulative of other evidence. The court
concluded, however, that the petitioner ‘‘assuredly
[had] not’’ established that the proffered new evidence
would probably produce a different result in a new trial.
It was on this basis that the court denied the petition
for a new trial.
The court reasoned as follows: ‘‘After a careful con-
sideration of all of the evidence, the court is not per-
suaded that a jury would find [the petitioner] not guilty
after hearing the new evidence submitted in the present
case. If anything, the new evidence, if submitted to a
jury, would seal [the petitioner’s] doom.
‘‘It is one thing to claim, as [the petitioner’s] able
counsel did in the original trial, that E’s testimony con-
cerning the [petitioner’s] sexual abuse was not credible.
The obvious implication of counsel’s argument was that
the alleged acts of sexual abuse had not been proven.
It is another thing to claim, as Hack testified in the
present case, that the acts of sexual abuse did occur,
but at a slightly later time.
‘‘Beyond this, if the jury were to hear that [the peti-
tioner] had previously preyed upon Hack, ‘grooming’
him prior to his sixteenth birthday, the likelihood of
conviction would approach a near certainty. Defense
attorneys ordinarily attempt to exclude evidence of pre-
vious sexual misconduct. It is the rare defense attorney
who affirmatively attempts to introduce such evidence.
‘‘For all these reasons, it is exceedingly unlikely that
Hack would even be called as a witness by the defense
in a new trial. If anything, it is the state that would
attempt to introduce such evidence.’’ (Emphasis omit-
ted.) The court denied the petition, and this appeal
followed.
We begin our discussion of the petitioner’s claims by
setting forth governing legal principles, including our
standard of review. ‘‘Pursuant to § 52-270, a convicted
criminal defendant may petition the Superior Court for
a new trial on the basis of newly discovered evidence.
See Practice Book § 42-55. A trial court’s decision on
that ground is governed by the standard set forth in
Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578
(1987), and further refined in Shabazz v. State, 259
Conn. 811, 827–28, 792 A.2d 797 (2002). Under Asher-
man, a court is justified in granting a petition for a new
trial [if] the petitioner demonstrates that the evidence
offered in support thereof: (1) is newly discovered such
that it could not have been discovered previously
despite the exercise of due diligence; (2) would be mate-
rial to the issues on a new trial; (3) is not cumulative;
and (4) is likely to produce a different result in the
event of a new trial.’’ (Internal quotation marks omit-
ted.) Carter v. State, 159 Conn. App. 209, 222, 122 A.3d
720, cert. denied, 319 Conn. 930, 125 A.3d 204 (2015).
‘‘This strict standard is meant to effectuate the underly-
ing equitable principle that once a judgment is rendered
it is to be considered final, and should not be disturbed
by posttrial motions except for a compelling reason.’’
(Internal quotation marks omitted.) Asherman v. State,
supra, 202 Conn. 434.
In Shabazz v. State, supra, 259 Conn. 811, our
Supreme Court explained that ‘‘trial courts should uti-
lize the following approach when applying the fourth
element of the Asherman test. The trial court must
always consider the newly discovered evidence in the
context of the evidence presented in the original trial.
In so doing, it must determine, first, that the evidence
passes a minimum credibility threshold. That is, if, in
the trial court’s opinion, the newly discovered evidence
simply is not credible, it may legitimately determine
that, even if presented to a new jury in a second trial,
it probably would not yield a different result and may
deny the petition on that basis. . . . If, however, the
trial court determines that the evidence is sufficiently
credible so that, if a second jury were to consider it
together with all of the original trial evidence, it proba-
bly would yield a different result or otherwise avoid an
injustice, the fourth element of the Asherman test
would be satisfied.’’ (Citation omitted.) Id., 827–28.
‘‘[T]he petitioner has the burden of alleging and prov-
ing facts [that] would, in conformity with our settled
equitable construction of the statutes, entitle him to a
new trial on the grounds claimed . . . .’’ (Internal quo-
tation marks omitted.) Carter v. State, supra, 159 Conn.
App. 226. ‘‘It is within the discretion of the trial court
to determine, upon examination of all the evidence,
whether the petitioner has established substantial
grounds for a new trial, and the judgment of the trial
court will be set aside on appeal only if it reflects a
clear abuse of discretion.’’ Asherman v. State, supra,
202 Conn. 434.
We now turn to the petitioner’s claims on appeal.
The petitioner claims that, in denying his petition for
a new trial premised on newly discovered evidence, the
court improperly concluded that the purported new
evidence would not lead to a different result if a new
trial was granted because the court (1) failed to give
sufficient weight to the recent statements by E to Hack
that, if credited, raised doubt regarding E’s age when
the sexual abuse underlying the petitioner’s conviction
occurred, and (2) erroneously found that it was not
likely that a defense attorney would introduce Hack’s
testimony at a new trial if granted because the testimony
would be highly prejudicial to the petitioner and likely
would undermine, rather than aid, his defense. We con-
clude that the court did not abuse its discretion in
concluding that the proffered new evidence was not
likely to produce a different result in the event of a
new trial.7
‘‘The burden of proving the probability of a different
result is upon the [petitioner], and in determining that
issue the trial court exercises a discretion [that] cannot
be set aside unless its discretionary power has been
abused.8 . . . The petitioner must overcome a high
hurdle to establish such an abuse of discretion. To meet
the fourth element of Asherman, [t]he [petitioner] must
persuade the court that the new evidence he submits
will probably, not merely possibly, result in a different
verdict at a new trial . . . . It is not sufficient for him
to bring in new evidence from which a jury could find
him not guilty—it must be evidence [that] persuades the
judge that a jury would find him not guilty.’’ (Citations
omitted; emphasis in original; footnote added; internal
quotation marks omitted.) Mitchell v. State, 338 Conn.
66, 97, 257 A.3d 259 (2021).
The petitioner asserts on appeal that the court failed
to give sufficient weight to that portion of Hack’s testi-
mony in which he recounted that E recently made state-
ments to Hack regarding whether E in fact was under
sixteen years old when the sexual abuse underlying the
petitioner’s conviction occurred. The petitioner argues
that, if credited by a jury, these statements likely would
raise reasonable doubt regarding the petitioner’s guilt.
There can be no doubt that the court gave due consid-
eration to Hack’s testimony regarding E’s statement
because the court specifically addressed that aspect of
the new evidence in its memorandum of decision. The
court concluded that this evidence would have done
little to undermine the ‘‘clear evidence in the criminal
trial that E was indeed under the age of sixteen when
he was sexually assaulted by [the petitioner].’’ In other
words, the court did not, as suggested by the petitioner,
fail to recognize the significance of E’s posttrial uncer-
tainty, it simply was unconvinced that a jury hearing
this evidence would have reached a different conclusion
regarding the petitioner’s guilt in light of the totality of
the evidence presented. The court’s overall finding that
Hack’s testimony lacked credibility and, thus, was
unlikely to be credited by a jury, applied equally to his
testimony regarding the alleged new statements by E.
Moreover, we agree with the trial court’s assessment
that E’s purported statement to Hack was vague.
According to Hack’s testimony, E never affirmatively
stated that he was sixteen years old or older when
the petitioner first abused him. At best, his statement
indicated possible confusion or doubt on E’s part, but
it certainly did not amount to a retraction of his trial
testimony that helped to establish a timeline from which
the jury reasonably could have found that his sexual
abuse by the defendant started prior to E turning six-
teen. As the petitioner recognizes, E’s testimony during
the criminal trial contained statements suggesting that
he was not able to discern precise dates and details of
every sexual encounter with the petitioner; nonetheless,
he testified that he was ‘‘very sure’’ that the sexual
contact at issue had occurred in 2002 and 2003, and
the jury presumably credited that portion of his testi-
mony. The only evidence before the trial court regarding
the exact wording and context of E’s purported posttrial
statement to Hack was Hack’s testimony. The peti-
tioner, who had the burden of proof with respect to
the petition for new trial, did not present any evidence
corroborating Hack’s testimony.9 See Skakel v. State,
295 Conn. 447, 484–85, 991 A.2d 414 (2010) (it was
proper for court hearing petition for new trial to con-
sider lack of corroboration when applying forth prong
of Asherman test). Finally, it is axiomatic that this
court, in reviewing a court’s decision on a petition for
new trial based upon newly discovered evidence, can-
not substitute its own assessment as to the proper
weight, if any, to be given any piece of evidence offered;
see Jones v. State, 328 Conn. 84, 94, 177 A.3d 534 (2018);
or revisit a trial court’s assessment regarding the credi-
bility of a witness. See State v. Lawrence, 282 Conn.
141, 156–57, 920 A.2d 236 (2007) (appellate courts defer
to trial court’s assessments concerning credibility and
will not retry such credibility determinations on
appeal).
In the present case, Judge Blue made express state-
ments questioning the credibility of Hack and his testi-
mony. The court found that Hack’s use of the phrases
‘‘to my knowledge’’ and ‘‘to my memory’’ in his affidavit
coupled with the fact that he later admitted in his testi-
mony at the hearing on the petition for a new trial that
he could not account for E’s whereabouts at all times
during the relevant period made it possible that ‘‘all
manner of sexual misconduct could have occurred
between [the petitioner] and E prior to E’s sixteenth
birthday that Hack simply would not have observed or
known of.’’
More importantly, in addition to noting a number of
unreasonable inferences that Hack advanced in support
of his statement that E could not have been under the
age of sixteen at the time he was first abused by the
petitioner, the court provided a number of reasons why
Hack was not a credible witness. First, Hack admitted
that he had acted to evade service of process in both
the federal civil action and the state criminal action.
He came forward with his current affidavit and testi-
mony only after reaching a settlement agreement with
the petitioner to resolve the action that the petitioner
had brought against him in rabbinical court seeking to
hold him liable for the $21 million federal civil judgment.
In short, the court found significant issues regarding
Hack’s credibility, further weakening the persuasiveness
of his testimony and making it less likely that a jury
would find his testimony credible.
Although the petitioner makes various arguments as
to why a court might reach a different conclusion
regarding Hack’s credibility, as previously stated, this
court will not revisit a court’s credibility determina-
tions. State v. Lawrence, supra, 282 Conn. 157. ‘‘[I]t is
solely within the discretion of the trial court to deter-
mine, upon examination of both the newly discovered
evidence and that previously produced at trial, whether
the petitioner has established substantial grounds for
a new trial.’’ Shabazz v. State, supra, 259 Conn. 821–22.
Having reviewed the record and the arguments of the
parties, we conclude that the court did not abuse its
discretion in determining that the petitioner’s purported
new evidence, which consisted wholly of Hack’s affida-
vit and testimony, would not, if introduced at a new
trial, likely result in a different outcome.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victims or others through whom the victims’ identities may be ascertained.
See General Statutes § 54-86e.’’ State v. Greer, supra, 213 Conn. App. 759 n.2.
2
As indicated by the trial court in its decision on the petition for a new
trial, the petitioner eventually was ordered in the federal civil lawsuit to
pay $21,749,041 in damages for his sexual abuse of E.
3
‘‘The [petitioner] filed postverdict motions for a judgment of acquittal
and a new trial. . . . [T]he [petitioner] claimed, inter alia, that the same
limitation period applicable to sexual assault in the second degree should
apply to the risk of injury charges because all of the charges were based
on the same conduct. After hearing argument, the court rejected the [petition-
er’s] statute of limitations claim and denied the motions.’’ (Footnote omit-
ted.) State v. Greer, supra, 213 Conn. App. 763–64. On direct appeal, this
court affirmed the trial court’s ruling regarding the statute of limitations
claim and rejected a claim that the court improperly had instructed the jury
regarding uncharged misconduct evidence. Id., 775, 786.
4
Practice Book § 42-55 provides: ‘‘A request for a new trial on the ground
of newly discovered evidence shall be called a petition for a new trial and
shall be brought in accordance with General Statutes § 52-270. The judicial
authority may grant the petition even though an appeal is pending.’’
General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant a
new trial of any action that may come before it, for mispleading, the discovery
of new evidence or want of actual notice of the action to any defendant or
of a reasonable opportunity to appear and defend, when a just defense in
whole or part existed, or the want of actual notice to any plaintiff of the
entry of a nonsuit for failure to appear at trial or dismissal for failure to
prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.’’
5
The petitioner initially proceeded at trial on the original petition, but
the court later permitted him to amend the petition in part to conform with
the evidence that had thus far been presented at trial.
6
General Statutes § 53-21 provides in relevant part: ‘‘(a) Any person who
. . . (2) has contact with the intimate parts . . . of a child under the age
of sixteen years or subjects a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child . . . shall be guilty of
. . . a class B felony . . . .’’
7
Because we conclude that the court properly determined that the prof-
fered new evidence, if presented to a jury, would not likely produce a
different result, it is unnecessary for us to review the court’s alternative
finding that, even if it granted a new trial, it was unlikely that defense counsel
would introduce Hack’s testimony because it would be highly prejudicial
to the petitioner and significantly increase rather than decrease his likelihood
of conviction.
8
In Jones v. State, 328 Conn. 84, 87, 177 A.3d 534 (2018), our Supreme
Court recognized an exception in which appellate courts would exercise
de novo review if the petition for a new trial was decided by a judge who
did not preside over the original trial and no fact finding was necessary
because both parties agreed that the new evidence was fully credible. Here,
although Judge Blue did not preside over the original trial, there was no
agreement by the parties that the new evidence was fully credible; to the
contrary, Hack’s credibility and, by implication, the credibility of his testi-
mony was in dispute. Accordingly, it is appropriate to apply the abuse of
discretion standard.
9
The petitioner argues that the state could have called E to testify at the
hearing on the petition for a new trial about his statements if it wished to
try and contradict Hack’s testimony. It is not the state’s burden, however,
to disprove the credibility of the evidence offered in support of a petition
for new trial. The burden of persuasion is on the petitioner, and a petitioner’s
failure to demonstrate the credibility of the evidence proffered is a reason-
able ground on which a court may deny a petition for new trial. See Shabazz
v. State, supra, 259 Conn. 827.