Conn. Crim. Jury Instr. 2.12-1

In the second part of the information, the defendant has been charged with being a <insert

appropriate statute and subsection:>

• § 53a-40 (a): persistent dangerous felony offender.

• § 53a-40 (b): persistent dangerous sexual offender.

• § 53a-40 (c): persistent serious felony offender.

• § 53a-40 (d): persistent serious sexual offender.

• § 53a-40 (e): persistent larceny offender.

• § 53a-40 (f): persistent offender for possession of a controlled substance.1

• § 53a-40 (g): persistent felony offender.

• § 53a-40a (a): persistent offender of crimes involving bigotry or bias.

• § 53a-40d (a): persistent offender of crimes involving (assault / stalking / trespass /

threatening / harassment / criminal violation of a protective order / criminal violation of a

standing criminal protective order / criminal violation of a restraining order).

• § 53a-40f (a): persistent operating while under the influence felony offender.

A person is guilty of being a <insert type of persistent offender charged> when that person

stands convicted of <insert crime>, and has been, prior to the commission of that offense,

convicted of <insert prior crime[s]> [and imprisoned under a sentence to a term of

imprisonment of more than one year or death in (this state / any other state / a federal

correctional institution)].

For you to find the defendant guilty of this charge, the state must prove the following elements

beyond a reasonable doubt:

Element 1 - Current conviction

The first element is that the defendant has been convicted of <insert crime> in this case. The

verdict you just rendered, finding the defendant guilty of <insert crime>, satisfies this element.

Element 2 - Prior conviction

The second element is that prior to <insert date the current crime was committed>, the defendant

was convicted of <insert prior crime4> [and imprisoned under a sentence to a term of

imprisonment of more than one year or death in (this state / any other state / a federal

correctional institution).] To be “convicted” of a crime means that a finding of guilty has been

entered against a defendant in a criminal or motor vehicle case.

[<If applicable; see note 2.> The state need only prove that the defendant served some amount

of time in confinement under a sentence having a term that exceeded one year. The crucial

element of the statute is that the imposed term exceeded one year; however, the defendant is not

required to have actually served one year in prison but is only required to have been

imprisoned.

5]

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant has been

convicted of <insert crime>, and that (he/she) had previously been convicted of <insert crime>

[and imprisoned under a sentence to a term of imprisonment of more than one year or death in

(this state / any other state / a federal correctional institution)].

You will now return to the deliberation room to consider this question. I am sending in with you

a form on which to record your answer. Your decision must be unanimous. Your foreperson

should check the appropriate answer and sign and date the form. Refer back to and use the

instructions I previously gave you on burden of proof, presumption of innocence, and reasonable

doubt.

1 The persistent offender for possession of a controlled substance was added by Public Acts,

Spec. Sess., June 2015, No. 2, § 19, effective October 15, 2015.

2 The requirement of imprisonment applies only to § 53a-40 (a), (b), (c), and (d).

3 Prior to October 1, 2010, § 53a-40d (a) (2) required that the prior conviction, or release from

imprisonment, be within the 5 years before the subsequent crime. That provision was deleted by

P.A. No. 10-144, § 12. For General Statutes § 53a-40 (e), (f) and (g), two prior convictions are

required. Beginning on October 1, 2019, § 53a-40 (e), governing persistent larceny offenders,

requires that the two prior larceny convictions must have been for violations committed during

the 10 years prior to the commission of the present larceny. This change was effected by No. 19-

151, § 3, of the 2019 Public Acts. Beginning on October 1, 2021, §§ 53a-40 (f) and (g),

governing persistent offenders for possession of a controlled substance and persistent felony

offenders, respectively, require that the two prior convictions must have been for violations

committed during the 10 years prior to the commission of the present offense. This change was

effected by No. 21-102, § 10, of the 2021 Public Acts.

4 Sections 53a-40 (a) (1) and (2), 53a-40 (b), 53a-40d, and 53a-40f provide that the prior

conviction may be a conviction in another state of “any crime the essential elements of which are

substantially the same as any of the crimes” in Connecticut that qualify the defendant as a

persistent offender. The determination of whether an out-of-state offense is substantially similar

to a Connecticut offense is a question of law for the court to decide. State v. Commins, 276

Conn. 503, 513 (2010).

5 State v. Milardo, 224 Conn. 397, 419 (1993).