                STATE v. JERZY G.—DISSENT

   ESPINOSA, J., dissenting. The majority concludes
that the appeal of the defendant, Jerzy G., is not moot
pursuant to this court’s decision in State v. Aquino, 279
Conn. 293, 901 A.2d 1194 (2006), because (1) the record
establishes that the sole reason for his deportation was
that he overstayed the term of his visitor visa without
permission, and (2) there is a reasonable possibility
that the pending criminal charge against him could be
a significant factor in the decision as to whether he
should be readmitted into the United States and, if he
were readmitted, he could then be subject to criminal
proceedings. Accordingly, the majority concludes that
the Appellate Court had jurisdiction over the appeal
under the collateral consequences doctrine, and it
reverses the judgment of that court dismissing the
appeal as moot. I would conclude that, to the contrary,
the Appellate Court correctly determined that the defen-
dant’s appeal is moot because any collateral conse-
quences to the defendant are ‘‘merely conjectural.’’
State v. Jerzy G., 162 Conn. App. 156, 166–67, 130 A.3d
303 (2015). Moreover, even if I were to agree with the
majority that the appeal is not moot, I would conclude
that the trial court did not abuse its discretion when it
denied the defendant’s motion to dismiss the sexual
assault charge against him and terminated his participa-
tion in the accelerated rehabilitation program. Accord-
ingly, I dissent.
   The collateral consequences doctrine requires the
party invoking the doctrine ‘‘to demonstrate more than
an abstract, purely speculative injury . . . .’’ Williams
v. Ragaglia, 261 Conn. 219, 227, 802 A.2d 778 (2002).
‘‘[F]or a litigant to invoke successfully the collateral
consequences doctrine, the litigant must show that
there is a reasonable possibility that prejudicial collat-
eral consequences will occur. Accordingly, the litigant
must establish these consequences by more than mere
conjecture, but need not demonstrate that these conse-
quences are more probable than not.’’ State v. McElveen,
261 Conn. 198, 208, 802 A.2d 74 (2002).
   I would note that the majority raises, but does not
answer, the question of whether the burden is on the
state to prove that there is no reasonable possibility of
collateral consequences, ‘‘in light of the presumption
of collateral consequences applied by this court . . . .’’
See footnote 6 of the majority opinion. The majority is
apparently referring to the discussion in McElveen of a
United States Supreme Court case distinguishing cases
involving criminal convictions, which are ‘‘presumed to
carry detrimental consequences,’’ and cases involving
revocations of parole, in which ‘‘the petitioner would
be required to demonstrate the actual existence of col-
lateral consequences to refute a finding of mootness.’’
State v. McElveen, supra, 261 Conn. 211, citing Spencer
v. Kemna, 523 U.S. 1, 12–14, 118 S. Ct. 978, 140 L. Ed.
2d 43 (1988). This court rejected that distinction. State
v. McElveen, supra, 211–12. In doing so, however, the
court made it clear that it understood the distinction
to be based, not on the party who bears the burden of
proof, but on the degree of probability that collateral
consequences will arise. Compare id., 211 (under Spen-
cer, when defendant is challenging revocation of parole,
he must ‘‘demonstrate the actual existence of collateral
consequences’’), with id., 212 (this court has always
‘‘relied upon the reasonable possibility of future adverse
collateral consequences to avoid a dismissal on moot-
ness grounds’’). Indeed, as I have indicated, this court
stated in McElveen that the burden of proving a reason-
able possibility of future adverse collateral conse-
quences is on the party raising the claim. Id., 208 (litigant
invoking collateral consequences doctrine ‘‘must show
that there is a reasonable possibility that prejudicial
collateral consequences will occur’’); compare Perez v.
Greiner, 296 F.3d 123, 125 (2d Cir. 2002) (under United
States Supreme Court precedent, ‘‘a criminal conviction
is rendered moot by a release from imprisonment only if
it is shown that there is no possibility that any collateral
legal consequences will be imposed on the basis of
the challenged conviction’’ [internal quotation marks
omitted]); see also State v. McElveen, supra, 211 (this
court is not bound by justiciability requirements appli-
cable to federal courts). Accordingly, I do not agree
with the majority that this court’s decision in McElveen
creates doubt about who bears the burden of proving
the reasonable possibility of collateral consequences in
the present case.
   In State v. Aquino, supra, 279 Conn. 298 n.3,1 this
court concluded that, in the absence of evidence that,
but for the defendant’s guilty plea, he would have been
allowed to reenter the country, there was no basis to
conclude that his petition for naturalization would be
gravely impaired by the plea. Accordingly, the court
concluded, that collateral consequence was speculative
and did not prevent his appeal from being moot. See
id. Similarly, in the present case, there is absolutely no
evidence that, but for the pending sexual assault charge
against the defendant, he would attempt and be permit-
ted to reenter the country. Indeed, defense counsel has
conceded that there is no evidence that the defendant
has any current desire to do so; see State v. Jerzy G.,
supra, 162 Conn. App. 166 n.5; and, even if he did, there
is no guarantee that he will have the same desire after
August, 2022, when he will be permitted to apply for
reentry, and when he will be in his late sixties. More-
over, there is no way of knowing whether, if the status
quo is maintained and the arrest warrant for the defen-
dant on the charge of sexual assault in the fourth degree
remains in effect, the defendant would be barred from
reentering the country on that ground, particularly
when the defendant would be able to explain that he
was granted accelerated rehabilitation on the charge,
but was terminated from the program only because he
was deported. Thus, any injury to the defendant as the
result of the trial court’s ruling is purely speculative.
Accordingly, I would conclude that the defendant’s
appeal is moot.
   I recognize that, because I would conclude that the
defendant’s appeal is moot, and because the parties
have not briefed the merits of the defendant’s appeal
to the Appellate Court in their briefs to this court, there
is no need for me to address the question of whether
the trial court abused its discretion. Nevertheless, I feel
compelled to observe that, in my view, the trial court
acted well within its discretion when it terminated the
program of accelerated rehabilitation and ordered the
defendant to be rearrested. See State v. Callahan, 108
Conn. App. 605, 611, 949 A.2d 513 (termination of pro-
gram of accelerated rehabilitation is subject to review
for abuse of discretion), cert. denied, 289 Conn. 916,
957 A.2d 879 (2008); see also State v. Santiago, 318
Conn. 1, 140–41, 122 A.3d 1 (2015) (Norcott and McDon-
ald, Js., concurring) (addressing issue that was moot
and that had not been briefed by parties because con-
curring justices ‘‘[felt] compelled’’ to do so). It was
perfectly reasonable for the trial court to conclude that
the defendant’s deportation from this country as the
result of his voluntary conduct in overstaying his visa
in violation of federal law did not provide a valid excuse
for his failure to comply with the conditions of the
program of rehabilitation and, therefore, did not war-
rant either the dismissal of the charges against him
based on the fiction that he successfully completed the
program or an indefinite continuance of the case on the
speculative assumption that he may attempt to return to
this country. ‘‘The defendant has cited no authority
for the proposition that the accelerated rehabilitation
program gives criminal defendants the authority to
frame the conditions with which they are prepared to
comply in order to demonstrate their rehabilitation. To
the contrary, the law is clear that the only choice that
the statute gives such defendants is to accept and to
abide by the conditions set by the court, or to reject
the conditions and to face further criminal prosecu-
tion.’’ State v. Callahan, supra, 613. Although it is con-
ceivable that this principle might not apply when a
defendant is prevented by circumstances entirely
beyond his control, such as a serious injury or illness,
from complying with the conditions of a program of
accelerated rehabilitation, that is not the case here. In
my view, when the defendant chose to stay in this coun-
try illegally, he assumed the risk of the adverse conse-
quences of that decision, including the risk that his
deportation would deprive him of statutory benefits,
such as participation in a program of accelerated reha-
bilitation pursuant to General Statutes § 54-56e, for
which he might otherwise be eligible.2 In this regard, I
would note that accelerated rehabilitation is not a right,
but is purely a matter of judicial discretion. See id.
(‘‘Accelerated rehabilitation is not a right at all. It is a
statutory alternative to the traditional course of prose-
cution available for some defendants and totally depen-
dent upon the trial court’s discretion.’’ [Internal
quotation marks omitted.]). It is clear to me, therefore,
that the trial court’s ruling was logical, it was based on
proper factors and it resulted in no injustice. See In re
Shaquanna M., 61 Conn. App. 592, 603, 767 A.2d 155
(2001) (abuse of discretion exists when court ‘‘has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors’’);
id., 604 (‘‘[a]n abuse of discretion occurs when an injus-
tice has been done’’). Accordingly, there was no abuse
of discretion.
   1
     The facts and procedural history of Aquino are set forth in the major-
ity opinion.
   2
     The cases cited by the amicus curiae, American Immigration Lawyers
Association, for the proposition that deportation cannot operate to deprive
a person of a statutory benefit for which he would otherwise be eligible
are easily distinguishable. See Lari v. Holder, 697 F.3d 273, 278 (5th Cir.
2012) (under plain meaning of federal statute, alien’s ability to file motion
to reconsider removal order is not contingent on presence in United States);
Lin v. United States Attorney General, 681 F.3d 1236, 1238, 1240 (11th Cir.
2012) (federal statute confers authority on federal Board of Immigration
Appeals to entertain motion to reopen removal order after movant has been
deported, and that authority cannot be eliminated by regulation); Contreras-
Bocanegra v. Holder, 678 F.3d 811, 817–18 (10th Cir. 2012) (same); Prestol
Espinal v. Attorney General of the United States, 653 F.3d 213, 218, 223
(3d Cir. 2011) (same); Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir.
2011) (same); Luna v. Holder, 637 F.3d 85, 100 (2d Cir. 2011) (same); Pruidze
v. Holder, 632 F.3d 234, 237–38 (6th Cir. 2011) (same); Marin-Rodriguez v.
Holder, 612 F.3d 591, 593–94 (7th Cir. 2010) (same); William v. Gonzales,
499 F.3d 329, 333–34 (4th Cir. 2007) (same); see also Judulang v. Holder,
565 U.S. 42, 58–59, 132 S. Ct. 476, 181 L. Ed. 2d 449 (2011) (‘‘comparable-
grounds rule’’ for determining who is eligible to seek discretionary relief
from deportation is invalid under federal Administrative Procedure Act as
being arbitrary and capricious). These cases from the federal Circuit Courts
of Appeals merely stand for the proposition that, under the governing federal
statute, the Board of Immigration Appeals has jurisdiction to consider
motions to reconsider and to reopen a removal order even after the subject
of the order has been deported, and that statutory grant of authority cannot
be eliminated by regulation. It does not follow that deportation can never be
a proper consideration when courts are determining eligibility for statutory
benefits. The United States Supreme Court in Judulang merely applied
the principle that an agency rule cannot be arbitrary and capricious. That
principle is not applicable here because no agency rule is under consider-
ation and because a determination that a program of accelerated rehabilita-
tion must be terminated when the participant, as the result of his own
voluntary conduct, cannot successfully complete it is neither arbitrary
nor capricious.
