State v. Harvey

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Harvey STATE OF CONNECTICUT v. RODNEY HARVEY (AC 46771) Alvord, Moll and Wilson, Js. Syllabus Convicted, after a jury trial, of various crimes, including assault in the second degree and assault in the second degree as an accessory, in connection with the stabbings of two victims, M and D, the defendant appealed. During an altercation in M’s residence, which lasted approximately one minute, the defendant stabbed M repeatedly while another man, H, attacked D, and, after the defendant yelled for help, H began stabbing M. Approximately two years after the incident, D sent M a newspaper article containing photographs of the defendant and H and indicating that they had been arrested in connec- tion with the stabbings. Several months later, the lead detective on the case contacted M and obtained a written statement from him indicating that the men in the newspaper article were the same men who had assaulted him and D. On appeal, the defendant claimed, inter alia, that his conviction of and subsequent punishment for both assault in the second degree and assault in the second degree as an accessory violated the constitutional prohibition against double jeopardy. Held: The defendant’s conviction of and subsequent punishment for both assault in the second degree and assault in the second degree as an accessory violated the constitutional prohibition against double jeopardy, as the evidence reflected that the stabbings arose from a continuous course of conduct, they were based on the same act or transaction for double jeopardy purposes and, thus, they implicated the prohibition against multiple punishments for a single act; accordingly, this court vacated the defendant’s conviction of assault in the second degree as an accessory. The evidence was sufficient to support the defendant’s conviction of assault in the first degree as an accessory with respect to the stabbing of D, as the evidence supported a finding that the defendant and H communicated with one another, traveled to the city in which M lived, and engaged in assaultive conduct in M’s residence as part of a criminal enterprise to steal certain drugs from M, and, thus, the defendant intentionally aided H to engage in the conduct that constituted the offense of assault in the first degree against D, and the jury reasonably could have found beyond a reasonable doubt that, because the defendant and H engaged in the coordinated stabbing attack against both victims in furtherance of their goal to steal illegal drugs, the defendant acted with the intent to cause serious physical injury to D. The trial court properly denied the defendant’s motion to suppress evidence of M’s out-of-court identification of him in the newspaper article, as the record supported the court’s finding that the identification was not the product of state action and, therefore, it did not violate the defendant’s due process rights under the federal constitution.  State v. Harvey The trial court properly denied the defendant’s motion to suppress M’s in-court identification of him because the identification did not violate the defendant’s right to due process, as the in-court identification was not a first-time identification, the previous out-of-court identification did not involve state action, and, although the prescreening requirement set forth in State v. Dickson (322 Conn. 410) was not applicable because there was an absence of an unduly suggestive procedure conducted by a state actor, the court nonetheless prescreened the in-court identification because it found that the out-of-court identification procedure, although unnecessarily suggestive, was reliable and, thus, allowed for the in-court identification to take place. The trial court did not err in concluding that the evidence related to M’s identifications of the defendant was reliable, as the court’s findings with respect to the factors upon which it relied to determine the reliability of M’s out-of-court identification were all supported by the evidence and by law, and, in light of this court’s conclusion that the trial court did not err in determining that the out-of-court identification was reliable, the defendant was unable to demonstrate that the trial court improperly concluded that the in-court identification was not reliable because it was the product of, or was tainted by, the unnecessarily suggestive out-of-court identification procedure that occurred in this case. The trial court properly exercised its discretion in denying the defendant’s motion for a new trial based on certain evidence that the prosecution sup- pressed, as, although the prosecution suppressed evidence after a request by the defense and that evidence was favorable to the defense, this court was not persuaded that the suppressed evidence, which tended to undermine an investigating detective’s credibility but was factually unrelated to the events underlying the defendant’s conviction, would have cast the case in a different light altogether or that the absence of the evidence deprived the defendant of a fair trial so as to constitute a violation of Brady v. Maryland (373 U.S. 83). Argued May 28, 2025—officially released June 2, 2026 Procedural History Substitute information charging the defendant with the crimes of attempt to commit robbery in the first degree, assault in the first degree as an accessory, assault in the second degree as an accessory, assault in the second degree, and conspiracy to commit assault in the first degree, brought to the Superior Court in the judicial district of Danbury, where the court, Pavia, J., denied the defendant’s motion to suppress certain evidence; thereafter, the case was tried to the jury before Pavia, J.; verdict and judgment of guilty; subsequently, the court, Pavia, J., denied the defendant’s motion for a new  State v. Harvey trial, and the defendant appealed to this court. Affirmed in part; vacated in part. Pamela S. Nagy, supervisory assistant public defender, for the appellant (defendant). Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were David Applegate, state’s attorney, and Kristin Chiriatti, assistant state’s attor- ney, for the appellee (state). Opinion WILSON, J. The defendant, Rodney Harvey, appeals from the judgment of conviction, rendered following a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (1), assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1), assault in the second degree as an accessory in vio- lation of General Statutes §§ 53a-8 and 53a-60 (a) (2), assault in the second degree in violation of § 53a-60 (a) (2), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1).1 The defendant claims that (1) his conviction of and subsequent punishment for both assault in the second degree as an accessory and assault in the second degree 1 The court imposed a total effective sentence consisting of thirty years of incarceration, execution suspended after fifteen years, followed by five years of probation. For the conviction under count one for attempted robbery in the first degree, the court sentenced the defendant to serve fifteen years of incarceration, suspended after seven and one-half years, followed by five years of probation. For the conviction under count two for assault in the first degree as an accessory, the court sentenced the defendant to serve fifteen years of incarceration, execution suspended after seven and one-half years, followed by five years of probation. The court ordered that the sentences imposed under counts one and two run consecutively. For the convictions under counts three, four, and five, for assault in the second degree as an accessory, assault in the second degree as a principal, and conspiracy to commit assault in the first degree, respectively, the court sentenced the defendant to serve five years of incarceration. The court ordered that the sentences imposed under counts three, four, and five run concurrently with the consecu- tive sentences imposed under counts one and two.  State v. Harvey as a principal violates the constitutional prohibition against double jeopardy, (2) the evidence was insufficient to support his conviction of assault in the first degree as an accessory, (3) the court improperly admitted evidence of in-court and out-of-court identifications of him by one of the victims, and (4) the court erred in denying his motion for a new trial based on material evidence that the prosecution suppressed in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We agree with the defendant’s claim that, under the circumstances of the present case, his convic- tion of assault in the second degree both as a principal and as an accessory violates the prohibition against double jeopardy. By way of relief, we vacate the defendant’s conviction of assault in the second degree as an accesso- ry.2 We disagree with the defendant’s remaining claims and, thus, affirm the judgment in all other respects. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. At all times relevant, Richard Mongero resided in a two-story house in Danbury. Mongero used illegal drugs and had a criminal history. He earned money, in part, by sell- ing prescription codeine promethazine cough syrup, known as “lean,” which he obtained by fraudulent means. Approximately one week prior to May 23, 2018, Mon- gero sold lean to Diego Trejo, whom he knew as “Nick” or “Lean Lick.” On May 23, 2018, Mongero arranged for Trejo to come to his home at 12:30 p.m. to make another purchase. Mongero communicated with Trejo by cell phone throughout the day. Trejo did not arrive at Mongero’s home until 6:30 p.m. A few minutes prior to Trejo’s arrival, Thomas DeSantis, Mongero’s friend and coworker, arrived. DeSantis told Mongero that “some guys” were waiting outside for him. Although Mongero was expecting only Trejo, he asked DeSantis to let them in. 2 The defendant also claims that the evidence was insufficient to sup- port his conviction of assault in the second degree as an accessory. Because, in connection with the defendant’s double jeopardy claim, we vacate the conviction for assault in the second degree as an accessory, it is unnecessary for us to reach the merits of this claim.  State v. Harvey Soon thereafter, Trejo entered Mongero’s upstairs bed- room accompanied by the defendant and Collin Hedley, both of whom were unknown to Mongero. Hedley asked Mongero if he had any marijuana wax for sale. Mongero stood up and removed some marijuana wax from his pocket, and Hedley nodded to the defendant and Trejo. At that moment, the defendant rushed toward Mongero, and Hedley attempted to strike DeSantis. Mongero reacted by punching the defendant, and they both fell backward into a recliner. The defendant, who was positioned face- to-face on top of Mongero with his knees in Mongero’s lap, stabbed Mongero in the right side of his body with a utility knife. Mongero quickly realized that there was a knife deep inside of him. Mongero and the defendant struggled as they both attempted to gain control of the knife. Mongero removed the knife from his side and stabbed the defendant in the stomach, which caused the defendant to yell, “Get him the fuck off me.” During the defendant’s altercation with Mongero, Hedley physically attacked DeSantis by stabbing him multiple times with a stiletto knife. When the defendant yelled, “Get him the fuck off me,” Hedley responded by stabbing Mongero in the back. Trejo did not physically assault either Mongero or DeSantis, but he directed the defendant and Hedley to “fuck [them] up” and to “get everything.” At one point during the alterca- tion, Trejo attempted to put a bag full of Xanax pills into his pocket before Mongero intervened and pulled the bag away from him. The altercation in the bedroom lasted approximately one minute and it ended when Hedley shouted, “[L]et’s go.” Mongero chased Trejo out of the house before going back inside to assist DeSantis, who was still upstairs with the defendant and Hedley. When he entered the front door, Mongero saw the defendant and Hedley at the top of the staircase that led to the second floor and his bedroom. The perpetrators, followed by Mongero, made their way downstairs and exited the home through French doors that led from a dining room to an outdoor porch that was raised off of  State v. Harvey the ground. Because there were no stairs leading from the porch to the ground, the defendant and Hedley attempted to flee by crawling over the wooden railing on the porch. Mongero kicked the railing until it broke, and the defen- dant and Hedley fell to the ground below. Like Trejo, the defendant and Hedley fled from Mongero’s yard on foot. Later, the three men left the area together in an automobile. Mongero and one of his neighbors called 911. Police and emergency medical personnel arrived, and Mongero and DeSantis were transported by ambulance to Danbury Hospital where they were treated for multiple physical injuries they sustained during the incident, some of which were life-threatening in nature. Mongero’s injuries included stab wounds to his right lower abdomen, neck, back and elbow. DeSantis’ various injuries included stab wounds, including a puncture wound that required open- heart surgery. Additional facts and procedural history will be set forth as necessary. I First, the defendant claims that his conviction of and subsequent punishment for both assault in the second degree as an accessory and assault in the second degree as a principal violate the constitutional prohibition against double jeopardy. We agree. In count three of the state’s second amended long form information, the state charged the defendant with assault in the second degree as an accessory in that, “on or about May 23, 2018, at 13 Windaway Road, Danbury, with intent to cause physical injury to another person, [the defendant] solicited, requested, commanded, impor- tuned and intentionally aided another person to engage in conduct where the other person, Collin Hedley, with intent to cause physical injury to another person, caused such injury to another person, to wit: Richard Mongero, by means of a dangerous instrument, to wit: a knife-like instrument, in violation of . . . §§ 53a-8 and 53a-60 (a) (2).” In count four of the state’s second amended long  State v. Harvey form information, the state charged the defendant with assault in the second degree as a principal in that, “on or about May 23, 2018, at 13 Windaway Road, Danbury, with intent to cause physical injury to another person, [the defendant] caused such injury to another person, to wit: Richard Mongero, by means of a dangerous instru- ment, to wit: a knife-like instrument, in violation of . . . § 53a-60 (a) (2).” The defendant argues that the evidence reflects that Mongero sustained stab wounds “during a single, con- tinuous course of conduct. Mongero was stabbed by both men in a matter of seconds, and the stabbings took place in the same location—his bedroom. There was also no break or intervening event between the stabbings. . . . Mongero and the defendant were fighting over the knife and when the defendant yelled for someone to get Mon- gero off him, Hedley stabbed him.” The defendant argues that, because the evidence reflects that the stabbings arose from a continuous course of conduct, they are based on the same act or transaction for double jeopardy purposes and, thus, implicate the prohibition against multiple punishments for a single act. The defendant argues that the proper remedy is to vacate his conviction under either count three or count four. The defendant asserts, and we agree, that he did not preserve this claim at trial. The defendant seeks review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitu- tional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitu- tional violation beyond a reasonable doubt.” (Emphasis  State v. Harvey in original; footnote omitted.) State v. Golding, supra, 239–40; see also In re Yasiel R., supra, 317 Conn. 781 (modifying third prong of Golding). The claim is review- able under Golding because the claim is of constitutional magnitude alleging the violation of a fundamental right; see State v. Barber, 64 Conn. App. 659, 671, 781 A.2d 464 (“[i]f double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable” (internal quotation marks omitted)), cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001); and the record permits us to review the claim. Before evaluating the claim under Golding’s third prong to determine whether the alleged constitutional violation exists and deprived the defendant of a fair trial, we set forth the applicable legal principles. “A defen- dant’s double jeopardy claim presents a question of law, over which our review is plenary.” (Internal quotation marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013). “The double jeopardy clause of the fifth amendment to the United States con- stitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . . This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. . . . The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy.” (Internal quotation marks omitted.) State v. Ragalis, 235 Conn. App. 538, 559, 345 A.3d 844, cert. denied, 353 Conn. 934, 347 A.3d 877 (2025). “Double jeopardy prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. . . . We have articulated two different approaches to the double jeopardy analysis of multiple punishments. Which approach applies in any given case depends on the statutory basis of the underlying charges. When the defendant is charged with the violation of two distinct statutes in a single criminal proceeding  State v. Harvey arising from a single underlying set of events, we have employed a two part analysis. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . We [t]raditionally . . . have applied the . . . test [set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)] to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . “In contrast, [t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. . . . This analysis essentially asks what unit of prosecution the legislature intended as the punishable act under the statute. . . . The unit of prosecution analysis involves an effort to determine the legislature’s intent as to whether and how a course of prohibited conduct can be separat[ed] into parts, each of which in itself constitutes a completed offense. . . . In some instances, the legislature will intend to punish a continuous course of conduct as a single unit of prosecution. . . . In other instances, the legislature intends to punish separately each discrete act that con- stitutes a completed offense. . . . “Selecting between these two approaches is simple enough in the ordinary case because it will be clear whether the defendant stands charged with violating two different criminal statutes or two violations of the same criminal statute.” (Citations omitted; emphasis omitted; footnotes omitted; internal quotation marks omitted.) State v. Ruiz-Pacheco, 336 Conn. 219, 226–29, 244 A.3d 908 (2020).  State v. Harvey In the present case, the defendant was convicted of assault in the second degree as a principal offender under § 53a-60 (a) (2) and as an accessory under §§ 53a-8 and 53a-60 (a) (2). The state alleged that Mongero was the victim of both offenses. Because Connecticut law treats the two violations as alternative means of committing the same crime, they arise under the same substantive criminal statute for double jeopardy purposes. See id., 229 (concluding that conviction of assault in first degree as principal offender in violation of General Statutes § 53a-59 (a) (1) and conviction of assault in first degree as accessory in violation of §§ 53a-59 (a) (1) and 53a-8 arise under same substantive criminal statute for double jeopardy purposes). As our Supreme Court has explained, “although a separate and distinct provision in our crimi- nal statutes defines a category of conduct commonly known as accessory liability, [t]here is no such crime as being an accessory . . . . The accessory statute merely provides alternate means by which a substantive crime may be committed.” (Emphasis in original; internal quotation marks omitted.) Id. “To determine whether the defendant’s multiple assault convictions [under the same criminal statute] violate the double jeopardy clause, we must ascertain the unit of prosecution that the legislature intended to punish under [the criminal statute at issue]. . . . This is because [t]he role of the constitutional guarantee [against double jeopardy] is limited to [en]suring that the court does not exceed its legislative authorization by impos- ing multiple punishments for the same offense. . . . The issue, though essentially constitutional, becomes one of statutory construction.” (Citation omitted; internal quotation marks omitted.) Id., 231. Issues of statutory construction are afforded plenary review. Id., 232. “When construing a statute, [o]ur fundamental objec- tive is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to deter- mine, in a reasoned manner, the meaning of the statu- tory language as applied to the facts of [the] case . . . .  State v. Harvey In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratex- tual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Id. Section 53a-60 (a) (2) provides: “A person is guilty of assault in the second degree when . . . with intent to cause physical injury to another person, the actor causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .” The issue concerning the interpretation of the statute was resolved in State v. Nixon, 92 Conn. App. 586, 886 A.2d 475 (2005), in which this court, in resolving a double jeopardy claim arising from multiple assault convictions arising under § 53a-60 (a) (2), concluded that § 53a-60 (a) (2) did not reflect a legislative intent that each act of stabbing constitutes a separate, complete, and chargeable offense. Id., 589–97. We are bound by that interpretation of the statute and, “[i]n the absence of a clear legislative intent to impose multiple punishments for violations of the same criminal statute arising out of a single trans- action or occurrence, the unit of prosecution question must be resolved in favor of the rule of lenity.” State v. Ruiz-Pacheco, supra, 336 Conn. 236. Our unit of prosecution analysis forbids us from treat- ing each stabbing as a separate crime and, applying the rule of lenity, we must avoid turning a single transac- tion into multiple offenses. This conclusion, however, does not end our analysis for double jeopardy purposes. We next consider whether, as the defendant argues, his repetitive stabbing of Mongero during the events of May 23, 2018, occurred during a single, continuous course of conduct or whether, as the state argues, the facts reflect two separate courses of assaultive conduct. In a careful consideration of the record, we must “look to the  State v. Harvey following factors to determine whether . . . the defendant engaged in distinct courses of conduct and, therefore, separately punishable assaults as to each victim: (1) the amount of time separating the acts; (2) whether the acts occurred at different locations; (3) the defendant’s intent or motivation behind the acts; and (4) whether any intervening events occurred between the acts, such that the defendant had the opportunity to reconsider his actions.” Id., 241. The evidence reflects, and the parties do not disagree, that the stabbing incident involving Mongero lasted approximately one minute,3 and it occurred in one loca- tion, Mongero’s bedroom. The parties disagree, how- ever, with respect to the defendant’s intent and whether intervening events occurred between the stabbings, such that the defendant had an opportunity to reconsider his actions. Mongero testified that, when the incident began, the defendant fell on top of him, essentially pushing him into the recliner in his bedroom. The defendant positioned himself on Mongero’s lap so that he was face-to-face with Mongero, at which time he stabbed him. Mongero testified that he physically struggled with the defendant, eventually standing up and pulling the knife from his side. Mongero testified that “[he] pulled it out and we fought over it and I inserted it in him.” According to Mongero, “[t]hen we fought over it and continued to fight . . . for the possession of the knife, whereas then I started to be attacked from the back by [Hedley], stabbed in the neck and the back.” Mongero testified that, while this scuffle was occurring, the defendant began yelling “get him the fuck off me. . . . [T]hat’s when I started to be stabbed by [Hedley]. . . . [Because] I was protecting myself.” According to the state, the foregoing testimony reflects that distinct acts occurred, “in the first, the defendant [was] stabbing Mongero in the side and in the second, [the defendant was] yelling, [g]et him the fuck off me, causing Hedley to stab Mongero in the back. The two 3 DeSantis testified that the attack lasted “[a]bout a minute.”  State v. Harvey assaults, one as principal and one as accessory, are thus susceptible of separation into parts, each of which in itself constitutes a completed offense and not part of the same continuing course of conduct.” (Internal quo- tation marks omitted.) The state also argues that “the defendant certainly had the opportunity to reconsider his actions . . . when Mongero got his hands on the knife and fought back. . . . Instead of releasing the knife and abandoning the attack, he opted to call for assistance . . . demonstrating that he had formed a new, separate criminal intent.” (Citations omitted; internal quotation marks omitted.) Contrary to the state’s arguments, we are not per- suaded that, when Mongero took control of the knife and the defendant asked for help, the defendant formed a new, separate criminal intent. The defendant’s state- ment, “[g]et him the fuck off me,” did not occur during a break in the action, but was a reaction in the heat of an uninterrupted physical struggle that transpired in one location and lasted for approximately one minute. Importantly, after Hedley responded and began stabbing Mongero, the defendant did not engage in separate con- duct, such as by restraining Mongero to aid the assault being committed by Hedley, which would have reflected that he had formed a separate intent. In light of all of the circumstances, the evidence that the defendant asked for help during this brief physical assault also does not cause us to conclude that he had even a brief opportu- nity to reconsider his actions, but merely that he sought assistance because Mongero had gained control of the defendant’s knife. Cf. State v. Ruiz-Pacheco, supra, 336 Conn. 244–45 (two distinct courses of conduct occurred for double jeopardy purposes because “the defendant’s stabbings of [the victim] are distinguished by the break in the fighting, the movement from one area of the park- ing lot to another, and the defendant’s own articulation of a distinct criminal intent”). Accordingly, we are not persuaded that it is appropriate to treat the defendant’s actions as two separate instances of assaultive conduct for purposes of double jeopardy.  State v. Harvey The defendant has demonstrated under Golding’s third prong that a constitutional violation exists that deprived him of a fair trial. The state has not attempted to demon- strate under Golding’s fourth prong that the violation is harmless beyond a reasonable doubt. Although, in this case, the court sentenced the defendant to serve a concurrent sentence for both assault in the second degree offenses, “we recognize that the conviction of both of the separate offenses, in their own right, impermis- sibly harms the defendant.” (Internal quotation marks omitted.) State v. Purvis, 227 Conn. App. 188, 220, 321 A.3d 1158, cert. denied, 350 Conn. 922, 325 A.3d 1093 (2024). The appropriate remedy is to vacate the defen- dant’s conviction of assault in the second degree as an accessory.4 See, e.g., State v. Ruiz-Pacheco, supra, 336 4 By way of relief in connection with this double jeopardy claim, the defendant asks this court to vacate one of the convictions for assault in the second degree. He does not ask this court to remand the case to the trial court for resentencing. Although we vacate the defendant’s conviction under count three, we do not require the court to resentence the defendant. Our Supreme Court has explained that, when one or more parts of a multicount conviction is vacated by a reviewing court, “common sense dictates that the [sentencing] judge should be free to review the effi- cacy of what remains in light of the original plan, and to reconstruct the sentencing architecture . . . within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal. . . . When we endorsed the Appellate Court’s adoption of the aggregate package theory, we explained that a defendant in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package . . . .” (Internal quotation marks omitted.) State v. Johnson, 316 Conn. 34, 41, 111 A.3d 447 (2015). Further, “[a]lthough the [trial] court may reconstruct the sentencing package to conform to its original intent, it is not required to do so. It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original.” (Internal quo- tation marks omitted.) Id., 41–42. Moreover, the court in Johnson observed that “the trial court always retains authority to restructure the original sentence if the court determines that the judgment of the reviewing court altered its original sentencing intent [and] . . . in a case in which the judgment of the reviewing court does not change  State v. Harvey Conn. 242–43 (in light of double jeopardy violation aris- ing from conviction for assault in first degree and assault in first degree as accessory, proper remedy is to reverse conviction for assault in first degree as accessory). II Next, the defendant claims that the evidence was insuf- ficient to support his conviction of assault in the first degree as an accessory. We are not persuaded. In count two of its second amended long form infor- mation, the state charged the defendant with assault in the first degree as an accessory in that, “on or about May 23, 2018, at 13 Windaway Road, Danbury, with intent to cause serious physical injury to another person, [the defendant] solicited, requested, commanded, impor- tuned and intentionally aided another person to engage the total effective sentence, the reviewing court should not order the trial court to resentence a defendant on the remaining convictions unless there is some evidence or other basis in the record supporting the conclusion that the judgment of the reviewing court altered the original sentencing intent. Adopting a default rule requiring the trial court to revisit the entire sentence, even when there is no evidence in the record suggesting that the court’s original sentencing intent was affected by the decision of the reviewing court, would waste valuable judicial resources.” Id., 42–43. In determining whether a trial court’s original sentencing intent has been disturbed, it is appropriate for the reviewing court to consider whether its decision had any effect on the total effective sentence or any of the conduct that served as the predicate for the original sentence. Id., 43–44. In the present case, for each of the convictions under counts three, four, and five, for assault in the second degree as an accessory, assault in the second degree as a principal, and conspiracy to commit assault in the first degree, respectively, the court sentenced the defendant to serve five years of incarceration. The court ordered that the sentences imposed under counts three, four, and five run concurrently to the con- secutive sentences imposed under counts one and two. See footnote 1 of this opinion. Vacating the conviction imposed under count three does not alter the defendant’s total effective sentence, as the total effective sentence is based on the same conduct on which the court relied in the first instance, and there is no other basis on which to conclude that the trial court’s original sentencing intent has been disturbed. The trial court retains the authority to restructure the defendant’s entire sen- tence if it determines that doing so is necessary to retain its original sentencing intent. See State v. Johnson, supra, 316 Conn. 42–43; see also State v. Fox, 192 Conn. App. 221, 230, 217 A.3d 41 (it was unnec- essary to remand case to trial court for resentencing because vacatur of defendant’s conviction would not alter his total effective sentence), cert. denied, 333 Conn. 946, 219 A.3d 375 (2019).  State v. Harvey in conduct where the other person, Collin Hedley, with intent to cause serious physical injury to another person, caused such injury to another person, to wit: Thomas DeSantis by means of a dangerous instrument, to wit: a knife-like instrument, in violation of . . . §§ 53a-8 and 53a-59 (a) (1).” The defendant claims that the evidence was insufficient to sustain his conviction of this offense because “[t]here was absolutely no evidence that [he] acted as an accessory to the assault on DeSantis as alleged in count two. The evidence was clear that Hedley attacked DeSantis, and there was no evidence that the defendant aided Hedley or intended to physically injure DeSantis.” The defendant contends that evidence of his mere pres- ence at the crime scene, and the absence of evidence that he “somehow helped Hedley and intended to aid him to cause physical injury to DeSantis,” was insufficient to prove his guilt under a theory of accessorial liability. The defendant asks this court to vacate his conviction.5 We begin our analysis by setting forth the essential elements of the offense, as well as the applicable legal principles. Section 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a danger- ous instrument . . . .” Here, the defendant was charged not as a principal offender, but as an accessory. Section 5 Defense counsel moved for a judgment of acquittal at the close of the state’s case-in-chief, which the court denied. In connection with that motion, defense counsel did not distinctly raise the arguments that the defendant raises in connection with this claim. Before this court, the defendant argues that this claim is reviewable under State v. Golding, supra, 213 Conn. 239–40. Our Supreme Court, however, has “observed that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional r