Salamon instruction in Connecticut

2021We went on to indicate that error arising from the lack of a Salamon instruction in cases brought before the court on collateral review would be reviewed for harm; see id. (plurality opinion); citing to State v. Hampton, 293 Conn. 435 , 463–64, 978 A.2d 1089 (2009), which had applied the Neder harmless error standard.

2018Id., at 432-33 , 154 A.3d 1054 ; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 79-80 , 136 A.3d 596 (petitioner's actions were continuous, uninterrupted course of conduct and lasted a few minutes where he pursued, grabbed, threatened and sexually assaulted victim); State v. Flores , supra, 301 Conn. at 87 , 17 A.3d 1025 (Supreme Court noted that where victim neither was bound nor moved physically, but was restrained on bed for no more than five minutes, failure to provide jury with Salamon instruction was not harmless); Epps v. Commissioner of Correction, supra, 153 Conn.

2022For the purpose of evaluating harm in light of this factor, our Supreme Court in Hinds distinguished cases in which a defendant restrained the victims for a longer period of time and confined or moved the victims to a greater degree; State v. Hampton, supra, 293 Conn. 456 , 463–64 (defendant confined victim for approximately three hours before committing substantive crime); State v. Jordan, 129 Conn. App. 215 , 222–23, 19 A.3d 241 (defendant committed substantive crime during forty- five minute period and employed restraint significantly greater than necessary to commit substantive crime), cer

2022For the purpose of evaluating harm in light of this factor, our Supreme Court in Hinds distinguished cases in which a defendant restrained the victims for a longer period of time and confined or moved the victims to a greater degree; State v. Hampton, supra, 293 Conn. 456 , 463–64 (defendant confined victim for approximately three hours before committing substantive crime); State v. Jordan, 129 Conn. App. 215 , 222–23, 19 A.3d 241 (defendant committed substantive crime during forty- five minute period and employed restraint significantly greater than necessary to commit substantive crime), cer

2018The respondent recognizes that in State v. Fields , supra, 302 Conn. at 247-48 , 24 A.3d 1243 , our Supreme Court specifically rejected the argument that when restraint is not an element of the underlying crime, a Salamon instruction is not required and instead determined that the jury must decide whether the restraint was merely incidental to the underlying crime or had independent criminal significance. 12 Stated differently, because restraint is not an element of *129 § 53a-134 (a) (4), the proper question is whether the petitioner's restraint of the three employees and Feltman was inherent

2018The respondent recognizes that in State v. Fields , supra, 302 Conn. at 247-48 , 24 A.3d 1243 , our Supreme Court specifically rejected the argument that when restraint is not an element of the underlying crime, a Salamon instruction is not required and instead determined that the jury must decide whether the restraint was merely incidental to the underlying crime or had independent criminal significance. 12 Stated differently, because restraint is not an element of *129 § 53a-134 (a) (4), the proper question is whether the petitioner's restraint of the three employees and Feltman was inherent

2022For the purpose of evaluating harm in light of this factor, our Supreme Court in Hinds distinguished cases in which a defendant restrained the victims for a longer period of time and confined or moved the victims to a greater degree; State v. Hampton, supra, 293 Conn. 456 , 463–64 (defendant confined victim for approximately three hours before committing substantive crime); State v. Jordan, 129 Conn. App. 215 , 222–23, 19 A.3d 241 (defendant committed substantive crime during forty- five minute period and employed restraint significantly greater than necessary to commit substantive crime), cer

2022For the purpose of evaluating harm in light of this factor, our Supreme Court in Hinds distinguished cases in which a defendant restrained the victims for a longer period of time and confined or moved the victims to a greater degree; State v. Hampton, supra, 293 Conn. 456 , 463–64 (defendant confined victim for approximately three hours before committing substantive crime); State v. Jordan, 129 Conn. App. 215 , 222–23, 19 A.3d 241 (defendant committed substantive crime during forty- five minute period and employed restraint significantly greater than necessary to commit substantive crime), cer

2018See White v. Commissioner of Correction , supra, 170 Conn. App. at 437 -38 , 154 A.3d 1054 (certain Salamon factors cut in favor of respondent, but did not trump significance of others that weighed in favor of petitioner) ...." (Citation omitted.) Banks v. Commissioner of Correction , supra, at 130, --- A.3d ----. 11 *172 We are cognizant of the respondent's somewhat Sisyphean 12 position in cases where the state had obtained a valid kidnapping conviction years prior to our Supreme Court's decisions in State v. Salamon , supra, 287 Conn. at 509 , 949 A.2d 1092 , Luurtsema v. Commissioner of Co

2018See White v. Commissioner of Correction , supra, 170 Conn. App. at 437 -38 , 154 A.3d 1054 (certain Salamon factors cut in favor of respondent, but did not trump significance of others that weighed in favor of petitioner) ...." (Citation omitted.) Banks v. Commissioner of Correction , supra, at 130, --- A.3d ----. 11 *172 We are cognizant of the respondent's somewhat Sisyphean 12 position in cases where the state had obtained a valid kidnapping conviction years prior to our Supreme Court's decisions in State v. Salamon , supra, 287 Conn. at 509 , 949 A.2d 1092 , Luurtsema v. Commissioner of Co

2018Id., at 432-33 , 154 A.3d 1054 ; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 79-80 , 136 A.3d 596 (petitioner's actions were continuous, uninterrupted course of conduct and lasted a few minutes where he pursued, grabbed, threatened and sexually assaulted victim); State v. Flores , supra, 301 Conn. at 87 , 17 A.3d 1025 (Supreme Court noted that where victim neither was bound nor moved physically, but was restrained on bed for no more than five minutes, failure to provide jury with Salamon instruction was not harmless); Epps v. Commissioner of Correction, supra, 153 Conn.

2018Id., at 432-33 , 154 A.3d 1054 ; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 79-80 , 136 A.3d 596 (petitioner's actions were continuous, uninterrupted course of conduct and lasted a few minutes where he pursued, grabbed, threatened and sexually assaulted victim); State v. Flores , supra, 301 Conn. at 87 , 17 A.3d 1025 (Supreme Court noted that where victim neither was bound nor moved physically, but was restrained on bed for no more than five minutes, failure to provide jury with Salamon instruction was not harmless); Epps v. Commissioner of Correction, supra, 153 Conn.

2018See White v. Commissioner of Correction , supra, 170 Conn. App. at 437 -38 , 154 A.3d 1054 (certain Salamon factors cut in favor of respondent, but did not trump significance of others that weighed in favor of petitioner) ...." (Citation omitted.) Banks v. Commissioner of Correction , supra, at 130, --- A.3d ----. 11 *172 We are cognizant of the respondent's somewhat Sisyphean 12 position in cases where the state had obtained a valid kidnapping conviction years prior to our Supreme Court's decisions in State v. Salamon , supra, 287 Conn. at 509 , 949 A.2d 1092 , Luurtsema v. Commissioner of Co

2018See White v. Commissioner of Correction , supra, 170 Conn. App. at 437 -38 , 154 A.3d 1054 (certain Salamon factors cut in favor of respondent, but did not trump significance of others that weighed in favor of petitioner) ...." (Citation omitted.) Banks v. Commissioner of Correction , supra, at 130, --- A.3d ----. 11 *172 We are cognizant of the respondent's somewhat Sisyphean 12 position in cases where the state had obtained a valid kidnapping conviction years prior to our Supreme Court's decisions in State v. Salamon , supra, 287 Conn. at 509 , 949 A.2d 1092 , Luurtsema v. Commissioner of Co

2022We begin by setting forth the applicable standard of review and the relevant principles of law. ‘‘The applica- bility of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459 , 139 A.3d 767 , cert. denied, 323 Conn. 905 , 150 A.3d 685 (2016).

2022We begin by setting forth the applicable standard of review and the relevant principles of law. ‘‘The applica- bility of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459 , 139 A.3d 767 , cert. denied, 323 Conn. 905 , 150 A.3d 685 (2016).

2018But I agree with the habeas court that the petitioner's confining of Royer in the refrigerator was not necessary to rob the Friendly's in Manchester. *829 See, e.g., State v. Jordan , 129 Conn. App. 215 , 223, 19 A.3d 241 (absence of Salamon instruction was harmless where defendant "controlled [the victims'] movement and prevented them from leaving" while he was not assaulting them and, therefore, actions were not merely incidental to assaults and sexual assault), cert. denied, 302 Conn. 910 , 23 A.3d 1248 (2011).

2018But I agree with the habeas court that the petitioner's confining of Royer in the refrigerator was not necessary to rob the Friendly's in Manchester. *829 See, e.g., State v. Jordan , 129 Conn. App. 215 , 223, 19 A.3d 241 (absence of Salamon instruction was harmless where defendant "controlled [the victims'] movement and prevented them from leaving" while he was not assaulting them and, therefore, actions were not merely incidental to assaults and sexual assault), cert. denied, 302 Conn. 910 , 23 A.3d 1248 (2011).

2021See Palmer v. Commissioner of Correction, 202 Conn. App. 902 , 242 A.3d 1084 (2021) (per curiam affirmance of judgment of habeas court, which applied Neder harmless error standard to Salamon claim); John B. v. Commissioner of Correction, 194 Conn. App. 767, 774 , 222 A.3d 984 (2019) (applying Neder harmless error standard to Sala- mon claim raised in habeas appeal, citing to Hinds as support), cert. denied, 334 Conn. 919 , 222 A.3d 513 (2020); Britton v. Commissioner of Correction, 185 Conn. App. 388, 400 , 197 A.3d 895 (2018) (same), peti- tion for cert. filed (Conn. November 26, 2018) (No. 1

2021See Palmer v. Commissioner of Correction, 202 Conn. App. 902 , 242 A.3d 1084 (2021) (per curiam affirmance of judgment of habeas court, which applied Neder harmless error standard to Salamon claim); John B. v. Commissioner of Correction, 194 Conn. App. 767, 774 , 222 A.3d 984 (2019) (applying Neder harmless error standard to Sala- mon claim raised in habeas appeal, citing to Hinds as support), cert. denied, 334 Conn. 919 , 222 A.3d 513 (2020); Britton v. Commissioner of Correction, 185 Conn. App. 388, 400 , 197 A.3d 895 (2018) (same), peti- tion for cert. filed (Conn. November 26, 2018) (No. 1

2021See Palmer v. Commissioner of Correction, 202 Conn. App. 902 , 242 A.3d 1084 (2021) (per curiam affirmance of judgment of habeas court, which applied Neder harmless error standard to Salamon claim); John B. v. Commissioner of Correction, 194 Conn. App. 767, 774 , 222 A.3d 984 (2019) (applying Neder harmless error standard to Sala- mon claim raised in habeas appeal, citing to Hinds as support), cert. denied, 334 Conn. 919 , 222 A.3d 513 (2020); Britton v. Commissioner of Correction, 185 Conn. App. 388, 400 , 197 A.3d 895 (2018) (same), peti- tion for cert. filed (Conn. November 26, 2018) (No. 1

2021See Palmer v. Commissioner of Correction, 202 Conn. App. 902 , 242 A.3d 1084 (2021) (per curiam affirmance of judgment of habeas court, which applied Neder harmless error standard to Salamon claim); John B. v. Commissioner of Correction, 194 Conn. App. 767, 774 , 222 A.3d 984 (2019) (applying Neder harmless error standard to Sala- mon claim raised in habeas appeal, citing to Hinds as support), cert. denied, 334 Conn. 919 , 222 A.3d 513 (2020); Britton v. Commissioner of Correction, 185 Conn. App. 388, 400 , 197 A.3d 895 (2018) (same), peti- tion for cert. filed (Conn. November 26, 2018) (No. 1

2025Moreover, this court has also afforded Golding review to an unpreserved claim that a trial court failed to give a Salamon instruction, analogizing such an omission to ‘‘[a]n improper instruction on an element of an offense,’’ which ‘‘is of constitutional dimension.’’ (Internal quotation marks omitted.) State v. Strong, 122 Conn. App. 131, 139, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010).

2025Moreover, this court has also afforded Golding review to an unpreserved claim that a trial court failed to give a Salamon instruction, analogizing such an omission to ‘‘[a]n improper instruction on an element of an offense,’’ which ‘‘is of constitutional dimension.’’ (Internal quotation marks omitted.) State v. Strong, 122 Conn. App. 131, 139, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010).

2022We begin by setting forth the applicable standard of review and the relevant principles of law. ‘‘The applica- bility of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459 , 139 A.3d 767 , cert. denied, 323 Conn. 905 , 150 A.3d 685 (2016).

2022We begin by setting forth the applicable standard of review and the relevant principles of law. ‘‘The applica- bility of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459 , 139 A.3d 767 , cert. denied, 323 Conn. 905 , 150 A.3d 685 (2016).

2022We begin by setting forth the applicable standard of review and the relevant principles of law. ‘‘The applica- bility of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459 , 139 A.3d 767 , cert. denied, 323 Conn. 905 , 150 A.3d 685 (2016).

2022We begin by setting forth the applicable standard of review and the relevant principles of law. ‘‘The applica- bility of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459 , 139 A.3d 767 , cert. denied, 323 Conn. 905 , 150 A.3d 685 (2016).

2021See Palmer v. Commissioner of Correction, 202 Conn. App. 902 , 242 A.3d 1084 (2021) (per curiam affirmance of judgment of habeas court, which applied Neder harmless error standard to Salamon claim); John B. v. Commissioner of Correction, 194 Conn. App. 767, 774 , 222 A.3d 984 (2019) (applying Neder harmless error standard to Sala- mon claim raised in habeas appeal, citing to Hinds as support), cert. denied, 334 Conn. 919 , 222 A.3d 513 (2020); Britton v. Commissioner of Correction, 185 Conn. App. 388, 400 , 197 A.3d 895 (2018) (same), peti- tion for cert. filed (Conn. November 26, 2018) (No. 1

2021See Palmer v. Commissioner of Correction, 202 Conn. App. 902 , 242 A.3d 1084 (2021) (per curiam affirmance of judgment of habeas court, which applied Neder harmless error standard to Salamon claim); John B. v. Commissioner of Correction, 194 Conn. App. 767, 774 , 222 A.3d 984 (2019) (applying Neder harmless error standard to Sala- mon claim raised in habeas appeal, citing to Hinds as support), cert. denied, 334 Conn. 919 , 222 A.3d 513 (2020); Britton v. Commissioner of Correction, 185 Conn. App. 388, 400 , 197 A.3d 895 (2018) (same), peti- tion for cert. filed (Conn. November 26, 2018) (No. 1

2018A Salamon instruction is necessary in such cases to ensure that the defendant is convicted of kidnapping only when the restraint that forms the basis of the kidnapping charge has criminal significance separate and apart from that used in connection with the underlying offense." State v. Fields , supra, 302 Conn. at 248 , 24 A.3d 1243 . 13 The dissent contends that we have expanded "the definition of the word 'necessary' to apply to conduct that was unnecessary to complete the robberies, but simply made their completion easier." As we discuss in greater detail in Bell v. Commissioner of Correct

2018A Salamon instruction is necessary in such cases to ensure that the defendant is convicted of kidnapping only when the restraint that forms the basis of the kidnapping charge has criminal significance separate and apart from that used in connection with the underlying offense." State v. Fields , supra, 302 Conn. at 248 , 24 A.3d 1243 . 13 The dissent contends that we have expanded "the definition of the word 'necessary' to apply to conduct that was unnecessary to complete the robberies, but simply made their completion easier." As we discuss in greater detail in Bell v. Commissioner of Correct

2021Specifically, the Appellate Court, applying the six factor test that we set forth in Salamon and relying on its analysis and conclusion in Banks v. Commissioner of Correction, 184 Conn. App. 101 , 194 A.3d 780 (2018), rev’d, 339 Conn. 1 , A.3d (2021); see Bell v. Commissioner of Correction, supra, 153, 166–72; held that ‘‘[t]he significance of the Salamon factors that do weigh in favor of the petitioner, namely, the nature and duration of the movement and confinement of the employees, whether such confinement occurred during the commission of the robbery and whether the restraint was inherent

2021Specifically, the Appellate Court, applying the six factor test that we set forth in Salamon and relying on its analysis and conclusion in Banks v. Commissioner of Correction, 184 Conn. App. 101 , 194 A.3d 780 (2018), rev’d, 339 Conn. 1 , A.3d (2021); see Bell v. Commissioner of Correction, supra, 153, 166–72; held that ‘‘[t]he significance of the Salamon factors that do weigh in favor of the petitioner, namely, the nature and duration of the movement and confinement of the employees, whether such confinement occurred during the commission of the robbery and whether the restraint was inherent

2018See, e.g., Pereira v. Commissioner of Correction , 176 Conn. App. 762 , 778, 171 A.3d 105 ( Salamon instruction not required when restraint forming basis of kidnapping has independent legal significance and is otherwise "sufficiently disconnected" from other crime), cert. denied, 327 Conn. 984 , 175 A.3d 43 (2017) ; State v. Golder , 127 Conn. App. 181 , 191, 14 A.3d 399 ( Salamon instruction not required where criminal conduct underlying kidnapping charge completed prior to restraint of victim), cert. denied, 301 Conn. 912 , 19 A.3d 180 (2011).

2018See, e.g., Pereira v. Commissioner of Correction , 176 Conn. App. 762 , 778, 171 A.3d 105 ( Salamon instruction not required when restraint forming basis of kidnapping has independent legal significance and is otherwise "sufficiently disconnected" from other crime), cert. denied, 327 Conn. 984 , 175 A.3d 43 (2017) ; State v. Golder , 127 Conn. App. 181 , 191, 14 A.3d 399 ( Salamon instruction not required where criminal conduct underlying kidnapping charge completed prior to restraint of victim), cert. denied, 301 Conn. 912 , 19 A.3d 180 (2011).