In what circumstances will a Connecticut court find that a warrant was executed with unreasonable delay?

We have adopted a two step test to determine whether an arrest warrant was executed without unreasonable delay. Specifically, in Swebilius, we held that, "once [a] defendant has demonstrated his availability for arrest, he has done all that is required to carry his burden; the burden then shifts to the state to demonstrate that any period of delay in executing the warrant was not unreasonable." State v. Swebilius, supra, 325 Conn. 804. "When a defendant presents evidence that [he] was not elusive, was available and was readily approachable . . . [he] has discharged [his] burden under Crawford." (Citation omitted; internal quotation marks omitted.) Id., 804-805.

"Once the defendant has presented evidence of his availability for arrest, it is reasonable and proper that the burden should then shift to the state to explain why, notwithstanding the defendant's availability during the statutory period, the delay in his arrest was reasonable. Doing so allocates burdens efficiently by requiring each party to bring forth evidence uniquely within its knowledge. Such a burden shifting model is also consistent with the distribution of burdens with respect to other affirmative defenses in Connecticut, few of which require a defendant to present affirmative evidence of matters beyond his personal ken. To dispense with that model . . . would needlessly impose a significant burden on the defendant-and the judicial system-when the state is in a far better position to determine what efforts were undertaken to ensure the defendant's prompt arrest." (Footnote omitted.) Id., 807-808.

We agree with the defendant that the Appellate Court incorrectly determined that some delays in the execution of an arrest warrant may be so brief as to be reasonable as a matter of law for the purpose of tolling the applicable statute of

[159 A.3d 1104]

limitations.⁶ We further conclude that the burden shifting framework that the Appellate Court applied in Soldi and other cases is fully consistent with Crawford and properly allocates burdens between the parties.

We recognize, however, that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitations. United States v. Levine, 658 F.2d 113, 127 (3d Cir.1981); State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987); see United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Therefore, we adopt, what we think is the sensible approach of the model penal code, and conclude that, in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of [202 Conn. 451] § 54-193(b), must be executed without unreasonable delay. Model Penal Code, supra. We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.

The defendant claims that the court improperly denied her motion to dismiss because her prosecution was time barred by the statute of limitations set forth in § 54–193.⁵ In making this claim, the defendant concedes that the arrest warrant was issued within the applicable limitations period. She argues, however, that the statute of limitations was not tolled, and thus the prosecution was time barred, because the arrest warrant was executed with unreasonable delay after the limitations period had expired. We agree.

The defendant in this matter was not elusive and was available in New Haven during the time period in question. The court determined that it was “abundantly clear that the defendant lived openly in the city of New Haven during the relevant time period, making no attempts to consciously elude service of the warrant.” As a result, the burden shifted to the state to demonstrate that the delay of two years and ten months was reasonable. In determining whether the state has met this burden, we must consider the factual circumstances of the particular case, including the actions of both the defendant and the state. See State v. Crawford, supra, 202 Conn. at 450–51, 521 A.2d 1034. To help determine if the state has met their burden, we look to other cases for guidance.

In State v. Soldi, supra, 92 Conn.App. at 852, 887 A.2d 436, an arrest warrant was issued for the defendant in August, 1997; id., at 853, 887 A.2d 436; after she violated a condition of her probation. Id., at 851, 887 A.2d 436. When the probation officer's attempts to contact the defendant proved unsuccessful, he transferred the warrant to the West Haven police department. Id. [130 Conn.App. 742] On January 28, 2003, the warrant was served on the defendant when she appeared in court on an unrelated charge. Id. The defendant filed a motion to dismiss, arguing that a five year delay in executing a parole violation warrant was unreasonable under the statute of limitations. Id. The court denied the defendant's motion to dismiss. Id.

On appeal, this court determined that the burden should have shifted to the state to demonstrate that the delay was reasonable after the defendant put forth evidence that she was living in West Haven for almost all of the five year period, she had utilities in her name, her daughter attended West Haven schools, and her driver's license and vehicle registration listed her addresses. Id., at 854, 887 A.2d 436. The state, however, did not proffer any testimony explaining the five year delay in executing the warrant. As a result, without an explanation for the police department's delay, this court determined that the delay was not reasonable and reversed the denial of the motion to dismiss. Id., at 860, 887 A.2d 436.

A review of the case law from other jurisdictions, while not binding, is also instructive. Courts in other jurisdictions also have found the delay between issuance and execution of the warrant to be unreasonable when authorities took minimal action to locate the subject of the arrest warrant. For example, in State v. Dozal, 31 Kan.App.2d 344, 347–48, 65 P.3d 217 (2003), the court held that an eighty-four day delay between issuance and service of a warrant was unreasonable. The record indicated that during this period of delay, the state's only attempt at contacting the defendant was by a letter, which requested that the defendant stop by the sheriff's office to be arrested. Id., at 348, 65 P.3d 217. The court concluded that this could not be considered a “bona fide effort to serve a warrant”; id.; particularly where the defendant did not leave the county and continually [130 Conn.App. 743] resided at the same place during the period in question. Id., at 347, 65 P.3d 217.

[25 A.3d 706]

Similarly, in Coleman v. State, 655 So.2d 1239 (Fla.App.1995), the court concluded that a lapse of approximately two years and ten months between the issuance and execution of an arrest warrant for a first degree misdemeanor offense was unreasonable when the record revealed that the state's efforts to locate the defendant consisted solely of sending an unsuccessful mailing. The court stated that “the complete absence of a search, diligent or otherwise, precluded the discovery of leads in this case.” Id. As a result, the court determined that the lapse in time between the issuance and execution of the arrest warrant was unreasonable. Id.

In contrast, other Connecticut cases have determined that a delay in executing an arrest warrant is not unreasonable when a defendant has relocated outside of the state. See, e.g., Gonzalez v. Commissioner of Correction, 122 Conn.App. 271, 999 A.2d 781 (in habeas corpus case alleging ineffective assistance of counsel, habeas court found that defendant would likely not succeed on motion to dismiss when he had relocated to Puerto Rico and authorities did not have his address), cert. denied, 298 Conn. 913, 4 A.3d 831 (2010); Merriam v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–04–0004319, 2007 WL 2034825 (May 25, 2007) (finding no unreasonable delay when defendant fled state after learning of victim's mother's intention to contact police and police continued in their effort to locate him), appeal dismissed, 111 Conn.App. 830, 960 A.2d 1115 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009); State v. Tomczak, Superior Court, judicial district of Tolland, Docket No. CR–9659766, 1996 WL 497407 (August 21, 1996) (17 Conn. L. Rptr. 478) (finding delay of nearly five years reasonable where defendant left Connecticut before [130 Conn.App. 744] warrant issued and police continued to make efforts to locate defendant after he left state).

Part of the reasonableness inquiry includes determining whether the defendant may have been difficult to apprehend. See State v. Crawford, supra, 202 Conn. at 451, 521 A.2d 1034. Unlike the defendants in Tomczak, Gonzalez and Merriam, the defendant in the present case at no point attempted to elude service of the warrant by leaving the state. Rather, similar to the defendant in Soldi, the defendant continued to openly reside in her community during the two year and ten month delay. Thus, the difficulty of apprehending the defendant was not at issue in this case.

To evaluate unreasonable delay and due diligence, we must also consider the police department's actions in executing the warrant. See State v. Soldi, supra, 92 Conn.App. at 854, 887 A.2d 436. In the present case, unlike the police in Tomczak and Merriam, the police did not diligently engage in any active search for the defendant. Instead, the police relied on checking names at traffic stops and during unrelated criminal investigations as the primary means of locating an individual subject to an arrest warrant. The facts, therefore, are more akin to Soldi and the cases cited from other jurisdictions where the police put forth minimal effort to locate the defendant. Although the police may have faced pressing matters that demanded their immediate attention during the period of delay, this alone will not fulfill the state's burden of showing reasonableness of delay and due diligence. There must be sufficient effort on the part of the police department to ensure that warrants are timely served, even for simple misdemeanors. The mere fact that a police department is “a very busy urban police department” is not enough for it to avoid its obligation to serve the warrants in a timely manner. Without a showing of the required effort on the part of [130 Conn.App. 745] the

[25 A.3d 707]

New Haven police department to serve the defendant with the arrest warrant, the state cannot demonstrate that the delay of two years and ten months is reasonable in order to toll the statute of limitations under § 53–194(b).

The judgment is reversed and the case is remanded with direction to grant the defendant's motion to dismiss and to render judgment thereon.

In the case at bar, as stated by the trial court, the defendant put forth evidence that she had lived in West Haven continuously from August 29, 1997, to January 28, 2003, except for a two month period. Although she had lived at four different West Haven addresses during that period, two on Peck Avenue, one on Park Street and one for a short period of time on California Street, the Park Street address was a three-family home owned by her brother continuously from 1978. Rapuano, himself, testified that he knew of the two Peck Avenue addresses and the Park Street address where, the defendant testified, she had lived. Additionally, the defendant's vehicles were registered in her name with a West Haven address, and she had a driver's license with a West Haven address. The utilities were in her name, and her daughter continuously attended West Haven schools. Further, the defendant specifically testified that she had made no effort to evade the police. Despite all of this testimony by the defendant and by Rapuano, the state offered no testimony from the West Haven police department to explain the reason for the five year delay in executing the warrant.

On the basis of our careful reading of State v. Ali, supra, 233 Conn. at 416, 660 A.2d 337, State v. Figueroa, supra, 235 Conn. at 178, 665 A.2d 63, State v. Kruelski, supra, 41 Conn.App. at 487, 677 A.2d 951, and the pointed case law from other jurisdictions, we conclude that the defendant set forth sufficient evidence to establish that she was not evasive of arrest and that her whereabouts were readily ascertainable. The state, thereafter, offered no evidence that the five year delay in the execution of the warrant was reasonable. Accordingly, we reverse the judgment denying the defendant's motion to dismiss.

The judgment is reversed and the case is remanded with direction to grant the defendant's motion to dismiss and to render judgment thereon.

In determining what it means to be "not elusive, available and readily approachable," Connecticut courts have analyzed the specific factual circumstances of each case in deciding whether sufficient evidence has been submitted to suggest that the defendant was available for apprehension for the burden to then shift to the state. In making this determination, Connecticut courts have considered (1) the location of the defendant during the relevant time period; (2) efforts made by the defendant to evade police detection or apprehension; and (3) the state’s knowledge of the defendant’s whereabouts.

First, Connecticut courts have generally associated a defendant who remains in Connecticut with being not elusive, available, and readily approachable. Nevertheless, a defendant who resides outside of Connecticut during the relevant time period does not automatically preclude a court from finding that the defendant was not elusive, was available, and was readily approachable. See State v. Derks, 155 Conn.App. 87, 94, 108 A.3d 1157, cert. denied, 315 Conn. 930, 110 A.3d 432 (2015) (holding that the burden did not shift because the defendant moved to Colorado and had multiple addresses there rendering him unavailable); Gonzalez v. Commissioner of Correction, 122 Conn.App. 271, 285-86, 999 A.2d 781, cert. denied, 298 Conn. 913, 4 A.3d 831 (2010) (holding that the burden did not shift as the defendant was in Puerto Rico and not readily available); State v. Soldi, 92 Conn.App. 849, 853-54, 887 A.2d 436, cert. denied, 227 Conn. 913, 895 A.2d 792 (2006) (holding that the burden should have shifted to the state as evidence demonstrated the defendant lived continuously in Connecticut); State v. Culbreath, supra, Superior Court, Docket No. CR14-0147852-S (finding that the burden shifted to the state as the defendant was incarcerated out of state in a federal prison); State v. Gauthier, Superior Court, judicial district of New Haven, geographical area number twenty-three, Docket No. MV-11-0074499-S (September 11, 2012, Mullins, J.) (finding that the burden shifted to the state as the defendant had not left Connecticut during relevant time period).

The second factor Connecticut courts have examined is whether the defendant has made efforts to evade apprehension by the authorities. Courts have considered a wide variety of factual circumstances when making this determination, such as the timing of the defendant’s actions. For example, in Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. 277, evidence was submitted that the defendant departed for Puerto Rico three days after his encounter with the police. The court held that "the evidence was uncontroverted that the petitioner left Connecticut for Puerto Rico within days of learning of the victim’s allegations of sexual abuse ... The timing of the petitioner’s relocation ... is compelling." Id., 285. Similarly, in State v. Derks, supra, 155 Conn.App. 94, the defendant had abruptly departed for Colorado leaving behind his wife and child following the complaint of sexual assault being made to the police. The court held that the burden never shifted from the defendant to the state, as evidence was submitted of the defendant being elusive based upon the timing of his actions. Id., 89, 94-95.

Furthermore, Connecticut court have found that when a defendant is living openly, the defendant is more likely to be viewed as being not elusive, available and readily approachable. Connecticut courts have found a defendant to be "living openly" during the relevant time period based upon a defendant maintaining a valid driver’s license, registering a vehicle, maintaining the same telephone number and contact information, maintaining a formal residence, paying for utilities, having direct family members attending public school, not avoiding contact or communication with the police, and being incarcerated in a federal correctional facility. See State v. Woodtke, supra, 130 Conn.App. 739-45 (holding that defendant "was not elusive and was available in New Haven during the time period"); State v. Soldi, supra, 92 Conn.App. 853-54; State v. Gauthier, supra, Superior Court, Docket No. MV-11-0074499-S (holding that the defendant who had not left Connecticut did nothing to evade arrest, and therefore, the burden shifted to the state to determine whether the delay was reasonable).

In the present case, although the defendant was residing out of state, the state was aware of his whereabouts unlike in Culbreath and could have easily executed the warrant within the statute of limitations period or sooner than it did in 2018. As set forth in State v. Crawford, 202 Conn. 443, 450-51 (1987), "some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitations ... Accordingly ... in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193(b), must be executed without unreasonable delay ... [W]e expressly declined to adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Swebilius, 325 Conn. 793, 802-03 (2017); see also State v. Woodtke, 130 Conn.App. 739-40.

Unlike the defendant in Ward, here, the defendant’s identity was known to the police. After the search of the defendant’s home, the defendant voluntarily went to the police station and provided a sworn statement to the police in which he admitted to possessing child pornography. The police seized his computer and other devices for investigation. The police had the defendant’s cell phone number and knew where he lived both in Connecticut and subsequently in California. Unlike the timing of the defendants’ immediate departure out of state in Gonzalez and Derks, here, it was not until almost two years (1 year and 9 months) later that the defendant moved to California where he remained at the same address with the same cell phone number until his arrest in 2018. The defendant lived openly in California. Specifically, the defendant did not leave abruptly as did the defendants in both Derks and Gonzalez, but remained in Connecticut for twenty-one months after having his home searched, his computers seized, having been questioned by police and having provided a sworn statement admitting to possession of child pornography. The defendant did not evade police by moving to California, and his California address where he lived from 2011 until his arrest in 2018 was known to the police. The court finds that the defendant was available to be served with the arrest warrant.

Next, the burden shifts to the state to show that the delay in executing the arrest warrant was not unreasonable. Here, the arrest warrant was issued on May 22, 2013, one year and seven months prior to the expiration of the statute of limitations period. The issue is whether this delay in executing the warrant beyond the statute of limitations period of December 22, 2014 was not unreasonable. The arrest warrant was not executed until approximately three and one-half years after the statute of limitations period expired. The state had one year and seven months before the expiration of the statute of limitations period (December 22, 2014) to execute the warrant. The state has not provided a valid reason for why it did not obtain an extraditable warrant during this time other than to suggest that it could be costly. However, it did choose to obtain an extraditable warrant in 2018, three and one-half years after the statute of limitations period expired.

If the defendant had abruptly or within a few months moved to California, changed his cell phone number, lived at more than one or two addresses and/or changed his name to an alias or otherwise was difficult to find, the defendant would not have been available but would have been evasive and not readily approachable. Also, under those circumstances, the delay in executing a warrant may be reasonable if the police were trying to locate him. Instead, here, actually the defendant was easy to locate. The police knew who he was, knew his cell phone number and knew where he lived. "[I]t is undesirable ... to toll the statute of limitations in instances [in which] the warrant is issued but no effort is made to arrest a defendant whose whereabouts are known." State v. Swebilius, supra, 325 Conn. 814 (citations omitted; internal quotation marks omitted). Had the police obtained the authorization to extradite in 2013 as they had obtained in 2018, the state would have been able to prosecute the defendant sooner. The defendant was arrested by the Huntington Beach California police on or about March 15, 2018, over three years after the statute of limitations period expired. After posting bail, the defendant returned to Connecticut on his own volition, therefore, there was no suggested cost to the state. When considering the totality of the circumstances, in that the state knew the California address of the defendant, the police requested an extraditable warrant in 2013 within the statute of limitations period and did not obtain one, but then obtained one approximately five years later in 2018 to serve the defendant at his same California address, and considering that the state provided no evidence to explain why its failure to serve the arrest warrant within the statute of limitations period was reasonable, the court finds the delay in executing the arrest warrant to be unreasonable. Therefore, the statute of limitations period is not tolled.

Here, the trial court expressly found that, "[f]ar from having demonstrated that [the defendant] was 'not elusive, was available and was readily approachable'; [internal quotation marks omitted] [State v.] Swebilius, supra, 325 Conn. 805; the defendant's testimony evidenced the contrary: that he abruptly departed from Hartford when . . . the accusation against him was made, and he never returned." In support of that finding, the trial court explained that "[t]he undisputed evidence in this case shows that the defendant already had relocated out-of-state by the time the police had secured a warrant for his arrest. For essentially the entirety of the next sixteen years, the defendant remained in Puerto Rico, far from the police department seeking his apprehension. Then, within thirty days of his 2017 arrival in Rochester, the defendant was located by New York authorities, extradited to Connecticut, and promptly served with the warrant."

The trial court further found that, "throughout that sixteen year period, the defendant led an existence that might once have been described as being 'under the radar,' and might now, under more current parlance, be characterized as 'off the grid.' By his own admission, at no point between 2001 until 2017 did the defendant ever hold a driver's license, pay any type of taxes, maintain legitimate (as opposed to under the table) employment, or appear on any lease or other rental agreement." These are certainly circumstances that made the defendant difficult to apprehend. The trial court also found that the defendant failed to produce "any evidence suggesting that his address or other personal identifying information would have appeared in any other public database . . . ." The defendant does not challenge any of these findings on appeal, and there is evidence in the record to support them.

Instead, the defendant asserts that R and B would have known his location and have been able to locate him because he was living with his mother in her home, which is where he had lived prior to moving to Hartford. But, even if R and B did know the defendant's whereabouts, they never shared that information with the Hartford police. Even after Fowler sought their help in locating the defendant, neither R nor B relayed to him that the defendant was residing with his mother or the town in which his mother resided.

8

In fact, on this point, the trial court found that "Fowler learned from [R] and [B] that the defendant had left Connecticut and was living in Puerto Rico. Fowler attempted to get more detailed information from these individuals as to the defendant's specific address in Puerto Rico, but neither was . . . able or willing to provide it. Fowler therefore did not know the specific town or city in Puerto Rico to which the defendant had relocated . . . [or] even that the defendant was residing there with his mother." Indeed, the trial court noted that "Fowler testified that [R] had not been forthcoming." Aside from suggesting that Fowler should have been able to locate the defendant in Puerto Rico- simply because R and B allegedly knew his whereabouts-the defendant does not challenge these findings as clearly erroneous, and we conclude that there is evidence in the record to support them.

Rather than challenging the trial court's findings, the defendant claims that his availability also was established because he did not go to Puerto Rico in order to evade prosecution but, instead, simply returned home to Puerto Rico when he was kicked out of R's house in Hartford. In doing so, the defendant misapprehends the governing law. As we explained previously in this opinion, a statute of limitations defense is an affirmative defense, which the defendant has the burden of proving by a preponderance of the evidence. See, e.g., State v. Ward, supra, 306 Conn. 706-707. Indeed, even the burden shifting framework we adopted in Swebilius places the initial burden on the defendant to prove that he was "not elusive, was available and was readily approachable . . . ." (Citation omitted; internal quotation marks omitted.) State v. Swebilius, supra, 325 Conn. 805.

In the present case, the defendant testified that he returned home to live with his mother in Puerto Rico and that he continued to live in Puerto Rico for the majority of the sixteen years leading up to his eventual arrest for the crimes at issue in this appeal. The trial court did not credit his testimony that his intent in returning home was simply based on the fact that he was kicked out and had no place to live. Instead, the trial court found that the defendant "abruptly departed from Hartford when (and because) the accusation against him was made, and he never returned." The trial court also found, and the defendant does not dispute, that "[the defendant's] testimony was devoid of any evidence suggesting that his address or other personal identifying information would have appeared in any other public database because of his status, at any time, as, for example, a registered voter, a bank customer, a recipient of public benefits, an account holder with any utility company, or anything else of a similar nature." The trial court further found that "the defendant's decision to leave and [to] stay away from Hart-

9

ford was based, at least in part, on his intent to avoid prosecution . . . ." On the basis of these factual findings, which are based on substantial evidence in the record, we cannot conclude that the defendant established his availability.

Moreover, as the trial court acknowledged, our case law does not require that the state establish that the defendant left the state in order to avoid prosecution. Instead, it is clear that, once a defendant asserts that his prosecution is barred by the applicable statute of limitations, he has the burden of demonstrating that he was "not elusive, was available and was readily approachable . . . ." (Citation omitted; internal quotation marks omitted.) State v. Swebilius, supra, 325 Conn. 805. The state has no burden to prove that the defendant left the jurisdiction to avoid prosecution. Indeed, the state has no burden of proof until the defendant establishes his availability. Although the defendant's intent in leaving the state may be relevant and may factor into the analysis, the primary question is whether the defendant has proven that he was "not elusive, was available and was readily approachable" once the arrest warrant had been issued; (internal quotation marks omitted) id.; not whether the state has proven that he left the jurisdiction in order to evade arrest or prosecution. See, e.g., Roger B. v. Commissioner of Correction, 190 Conn.App. 817, 841, 212 A.3d 693 ("The issue in [this] case, however, is not whether the statute of limitations had been tolled while the [defendant] was absent from the state or even why he left the state. The issue is whether he was elusive, unavailable, or unapproachable once the warrant for his arrest had been issued."), cert, denied, 333 Conn. 929, 218 A.3d 70 (2019), and cert, denied, 333 Conn. 929, 218 A.3d 71 (2019).

Here, as we mentioned, the trial court found that the defendant did not satisfy his burden of establishing that he was available for arrest. Therefore, the trial court correctly determined that the burden did not shift to the state to show the reasonableness of the delay in executing the defendant's arrest warrant. See, e.g., Gonzalez v. Commissioner of Correction, 122 Conn.App. 271, 285-86, 999 A.2d 781 (fact that defendant left state and relocated to Puerto Rico without leaving contact information with police and within days of learning of allegations of sexual abuse did not support finding of availability such that burden shifted to state to show reasonableness of delay in executing arrest warrant), cert, denied, 298 Conn. 913, 4 A.3d 831 (2010).

On the basis of the foregoing, we conclude that the trial court's finding that the defendant was not available is not clearly erroneous. Therefore, the defendant did not satisfy his burden of proving his affirmative defense, and we need not address the second step of the Swebilius test-namely, whether the state established that it executed the defendant's arrest warrant without unreasonable

10

delay. See State v. Swebilius, supra, 325 Conn. 804. Accordingly, we conclude that the trial court properly denied the defendant's motion to dismiss.