2012 THU 08:16 FAX 203 507 e240 OL RIMTNAL DIV Boos STATE OF CONNECTICUT DOCKET NO.: CRO7-0241860 ‘SUPERIOR COURT, PART A STATE OF CONNECTICUT : JUDICIAL DISTRICT OF NEW HAVEN v. 1: AT NEW HAVEN JOSHUA KOMISARJEVSKY January 11, 2012 DEFENDANT JOSHUA KOMISARJEVSKY'S MEMORANDUM IN SUPPORT OF ‘MOTION FOR A NEW TRIAL Introduction: The defendant Joshua Komisarjevsky, pursuant to Practice Book §§ 42.53, has moved that the Court grant the defendant a new t ofthe guily-not guilty phase of the case. The defendant has also moved, ifthe Court should deny this motion, that the Court grant him a new trial of the penalty phase of the case. This memorandum is submitted in support. Nothing n this motion er memorandum should be constued as 2a relingulshment or waiver of any claim or argument Mr. Komisarjovsky has raised to date, General Principles Governing New Trial Motions: Practice Book § 42-53 provides: duet Dict of Now Haven ‘SUPERIOR COURT by reason ofwhich the CHIEF CLERK'S OFFICE nstitutionally entitled to a new (1) For an er defendant is trial; or (2) For any other error which the defendant ean jurious to him or her.01/12/2012 THU 08:10 FAK 203 887 6240 ‘NH cRIMENAL DIV Boos 2 "A motion for a new tial Is addressed fo the sound discretion of the tral court and is notto be granted except on substantial grounds.” (Internal quotation marks omitted.) State v, Newsome, 238 Conn. 588, 628, 652 A.2d 972 (1998). "The general inthis state is that a mistrial should be granted only when itis apparent to the court that some ‘occurrence during the tial has so iced a party that he can no longer receive a fair ‘A.24 217, cert. denied, 209 Conn, 811, 550 A.2d 1084 (1988). ‘Mr. Komisarjevsky requests that the Court grant him a new tral on the folowing grounds." le cause hearing, eapite his repeated requosts that ho be afforded euch a hearing. Mr. Komisarjevsky waived a probable cause hearing with respect to the charges? ‘of the original Information fled against him, When the first supereeding information was 7 Bach of the issues raised herein derives from issues argued during the course Including certain sues inthis motion, we donot abandon any sue o argument heretofore raised under properly preserved .., the counts which Sh of the informations the requirement of a probable cause hearing, and those counts are not encompassed by our use of the term "charges."01/12/2012 Ta 08:19 FAX 209 667 e240 Na caIMDNAL DIV 3 filed, however, he demanded a probable cause hearing prior to being put to plea and is being required to proceed to trial on the charges cf that superseding Information. Following briefing and argument, the Court held that Mr. Komisarjevsky, having waived probable cause hearing on the charges of the original information, was ‘ot entitled o a determination of probable cause on the charges of the superseding Information? ‘The state filed second and third superseding informations, and Mr. Komisarjevsky requested a probable cause hearing with respect to each, ‘The third superseding information, on which Mr. Kemisarjevsky stood tral and on hich he faced a verdict of death or life imprisonment without the possibilty of release, contains the same capital charges made In the eriginal information, although the language of the chargos was altered, Some ofthe alterations are significant. For ‘example, in count six ofthe original information, the State's Attomey had “urthor accuse] Joshua Komisarevsky of Capital Felony and charged] that... he said Steven Hayes did murder a person inthe course ofthe commission of sexual assault inthe frst degree..." In lation of General Statutes § 530-5406). (Emphasis added.) The corresponding count of the third superseding information, count 14, also alleges a violation of General Statutes § §3a-542(6), but in that count the State's Attorney “accuses Joshua Komisarjevsky of Capital Felony and charges that tr. Komisarjevsky took an interlocutory appeal from that decision, AC33603, ‘The Appeliate Court, on September 1, 2011, granted the state's motion to dismise our ‘original appeal for want ofa fir