State v. Ciullo
To convict a defendant of unlawful restraint in the first degree, the state must prove that the defendant's conduct exposed the victim to a substantial risk of physical harm, and also that the risk was created by the defendant's restraint of the victim. The defendant, Pasquale Ciullo, and his neighbor, Rose Pinchuk, disputed their property boundaries. Pinchuk hired laborers, Victor Illescas and Job Diaz, who installed a fence running into the defendant's driveway. Alerted by another neighbor, the defendant and his son, Angelo Ciullo, returned home drawing semiautomatic pistols. The defendant chambered a bullet and pointed his gun at Illescas. With his son, he grabbed Illescas and ordered him to sit. Diaz ran behind Pinchuk who called 911 on her cell phone. Angelo Ciullo pointed his gun at Diaz who sat. The defendant instructed his son to hold them while he chased Pinchuk. She ran to a neighbor's yard, fell and was injured. Following a jury trial, the defendant was convicted on three counts of unlawful restraint in the first degree. He appealed raising multiple claims. The Appellate Court affirmed and reversed the judgment, in part. There was a reasonable view of the evidence that supported the verdict as to Illescas and Diaz, but the evidence was insufficient to sustain the verdict as to Pinchuk. There was no evidence that the defendant restrained Pinchuk. Her flight demonstrated the absence of restraint. The defendant's claim was rejected that the state's evidence was insufficient to support the conviction as to Diaz and Illescas, including because there was evidence from the defendant and his son that they did not unholster their weapons. The jury was entitled to credit the differing testimony of Diaz, Illescas and Pinchuk. Further, the jury reasonably could have found that the defendant's chambering of a bullet and pointing the gun at Illescas, with Diaz standing in close proximity, subjected both Illescas and Diaz to a substantial risk of physical injury. The trial court did not abuse its discretion in denying the defendant's motion for a mistrial due to jury misconduct. A dismissed juror testified that other jurors made comments including regarding the defendant's ethnic background, speculating about mob affiliation. The trial court properly conducted an inquiry, made credibility determinations and concluded that there were no grounds for a mistrial.