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*********************************************** 
STATE OF CONNECTICUT v. SIGFREDO ROSARIO

(AC 42827)

Bright, C. J., and Elgo and DiPentima, Js.

Syllabus

Convicted, following a jury trial, of the crime of larceny in the second degree,

the defendant appealed to this court. The defendant, a resident of a

condominium complex in Waterbury, became the president of the board

of directors of the condominium association. P, the treasurer of the

board of directors, became concerned about the association’s finances

and asked the defendant for financial information, which he failed to

provide. P examined the bank records of the association and noticed

that checks had been written from the association’s bank account to

the defendant and deposited in the defendant’s personal bank account.

The defendant explained that he made withdrawals from his personal

bank account for legitimate purchases for the condominium complex,

but admitted that he also used the funds for personal items. The defendant’s sentence included probation with special conditions, including

the payment of restitution. On the defendant’s appeal to this court, held:

1. The defendant could not prevail on his claim that the trial court committed

plain error when it required him, as a special condition of probation,

to pay restitution, which was based on his claim that the court did not

first consider the factors enumerated in the applicable statute (§ 53a28 (c)): the court did consider the factors in § 53a-28 (c) (3), as it stated

in its second articulation that the defendant had an earning capacity

that would enable him to make restitution, and the court noted that, at

sentencing, the defendant stated that he was able to work and that he

was financially supported by his mother, and the court also considered

the rehabilitative effect on the defendant of paying restitution and the

impact on the victims.

2. The trial court did not abuse its discretion in denying the defendant’s

motion for an extension of time within which to begin making restitution

payments: the court granted the defendant an extension of time to begin

making restitution payments to six months after the original start date,

and, although the defendant claimed that he was not provided with

sufficient time to generate income, the court found that the defendant

had a responsibility to find alternative ways to earn funds to make the

restitution payments.

3. The defendant could not prevail on his unpreserved constitutional claim

that the trial court violated his due process right to a fair and impartial

trial when it questioned him and two of the state’s witnesses, H and P:

the court’s questioning of H, a detective, was not inappropriate because

the court stated that its questions were intended to clarify H’s testimony,

and the record appeared consistent with this purpose; moreover, the

court properly intervened to clarify the self-represented defendant’s

testimony, particularly in light of his inclusion of irrelevant material in

his testimony and his disruptive conduct, the fact that the court’s questions may have drawn attention to the strength of the state’s case did not

render those questions improper, the court’s questions did not suggest

anything about the credibility of any witnesses or advocate in favor of

a particular verdict, and the court’s questions did not prejudice the

defendant because the elicited facts were not truly in dispute; furthermore, the court did not act as an advocate for the state when it questioned

P regarding the defendant’s identity, as the court’s questions, viewed in

the context of the entire trial, did not prejudice the defendant or improperly influence the outcome of the proceedings.

Argued October 12, 2021—officially released January 4, 2022

Procedural History

Substitute information charging the defendant with

the crime of larceny in the second degree, brought to

the Superior Court in the judicial district of Waterbury,

geographical area number four, and tried to the jury
before Crawford, J.; verdict and judgment of guilty, from

which the defendant appealed to this court. Affirmed.

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Joseph S. Danielowski, assistant state’s attorney, for the appellee (state).
Opinion

DiPENTIMA, J. The defendant, Sigfredo Rosario,

appeals from the judgment of conviction, rendered following a jury trial, of larceny in the second degree in

violation of General Statutes §§ 53a-119 (1) and 53a123 (a) (2). On appeal, the defendant claims that the

court (1) improperly ordered that he pay restitution

without first considering the factors enumerated in General Statutes § 53a-28 (c), (2) abused its discretion in

denying his motion for an extension of time within

which to begin making restitution payments and (3)

violated his due process right to a fair and impartial

trial when it questioned him and two of the state’s

witnesses.1 We affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant. The

defendant resided at the Lincoln Park condominium

complex in Waterbury and became the president of the

board of directors of the Lincoln Park condominium

association (association) in May, 2013. In November,

2014, Omayra Pizarro, the treasurer of the board of

directors of the association, became concerned about

the finances of the association and asked the defendant

for financial information related to her concerns. When

the defendant failed to provide such information,

Pizarro examined the bank records of the association

and noticed that checks had been written from the

association’s bank account to the defendant. Pizarro

shared her concerns with James Loughlin, the general

counsel for the association, and Loughlin asked the

defendant for an accounting, which the defendant

declined to provide.

Pizarro then contacted Detective Kyle Howles of the

Waterbury Police Department and provided him with

the association’s bank records and bylaws, which state

that no member of the board of directors shall receive

compensation from the association for acting as such.

Howles then contacted the defendant, who provided

Howles with his personal bank records. Howles’ investigation revealed that thirteen checks, totaling $47,931.60,

had been written from the association’s bank account to

the defendant and had been deposited in the defendant’s

personal bank account. The defendant made withdrawals from that same personal bank account for legitimate

purchases for the condominium complex, as well as

for personal items such as gasoline, groceries, fast food,

mortgage payments and cell phone bills. The defendant

explained to Howles that he had placed the money into

his personal bank account because he needed cash to

pay for projects around the condominium, to pay day

laborers who only accepted cash and to negotiate better

prices with contractors; he did concede, however, that

there was no accounting, notes, or record of those

expenses. Howles did not include in his calculation of

personal expenses any withdrawals that possibly were
related to condominium improvements. Howles determined that the defendant had withdrawn ‘‘just short of

$20,000’’ from the subject bank account for expenses

that the defendant had acknowledged were personal.

The defendant testified at trial that he ‘‘took thirteen

checks for $47,131.60’’ from the association and that he

used $17,515.09 of that amount for personal expenses.

Following a jury trial, the defendant was convicted

of larceny in the second degree. The court, Crawford, J.,

sentenced the defendant to five years of imprisonment,

execution suspended, and five years of probation with

special conditions, including the payment of restitution

in the amount of $17,500, to be paid at a rate of $400

per month beginning in February, 2019. This appeal

followed.

The defendant filed a motion for stay of execution

of his probation, a motion for stay of the conditions of

his probation and a motion for extension of time to

start making the restitution payments, which motions

the trial court denied. The defendant filed a motion for

articulation on December 11, 2019, requesting that the

court articulate the basis, according to the factors in

§ 53a-28 (c), for its order of restitution. On January

8, 2020, the court issued an articulation in which it

referenced an excerpt of the transcript of a June 17,

2019 hearing on the defendant’s postverdict motions

for stay of execution of his probation, for stay of the

conditions of his probation and for an extension of time

to start making the restitution payments. The defendant

filed a second motion for articulation on January 23,

2020, requesting a further articulation as to the court’s

decision to impose restitution pursuant to § 53a-28 (c).

The court issued a second articulation on March 4, 2020,

explaining the factual and legal basis for its decision

to impose restitution. Additional facts and procedural

history will be set forth as necessary.

I

The defendant first claims that the court committed

plain error when it required him, as a special condition

of probation, to pay restitution in the amount of $400

per month without first considering the factors enumerated in § 53a-28 (c).2 He argues that the court had before

it no evidence that he had any income, assets or the

ability to generate enough income to pay $400 per

month in restitution. We are not persuaded.

‘‘Plain error review may be appropriate when a court

fails to follow or apply a statute that is clearly relevant

to the case. . . . Nevertheless, [r]eview under the plain

error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious

that it affects the fairness and integrity of and public

confidence in the judicial proceedings. . . . [T]he core

of the plain error doctrine . . . concerns whether a

defendant can prevail on the merits of a claim, not
simply whether the claim can be reviewed. . . . Consequently, [w]here a trial court’s action does not result

in any manifest injustice, a defendant’s claim under the

plain error doctrine does not warrant review.’’ (Citations omitted; internal quotation marks omitted.) State

v. Moore, 85 Conn. App. 7, 11, 855 A.2d 1006, cert.

denied, 271 Conn. 937, 861 A.2d 510 (2004).

Section 53a-28 (c) (3) provides in relevant part that,

‘‘[i]n determining the appropriate terms of financial restitution, the court shall consider: (A) The financial

resources of the offender and the burden restitution

will place on other obligations of the offender; (B) the

offender’s ability to pay based on installments or other

conditions; (C) the rehabilitative effect on the offender

of the payment of restitution and the method of payment; and (D) other circumstances, including the financial burden and impact on the victim, that the court

determines make the terms of restitution appropriate.

. . . The court shall articulate its findings on the record

with respect to each of the factors set forth in subparagraphs (A) to (D), inclusive, of this subsection. . . .’’

We conclude that the court’s remarks at sentencing,

combined with its second articulation, make clear that

the court considered the relevant factors in § 53a-28 (c)

(3) (A) through (D).3

In light of our determination that

the alleged error did not occur, we need not address the

defendant’s argument that § 53a-28 (c) (3) mandates that

the court articulate its findings on the record with respect

to the four factors in subparagraphs (A) through (D).

With respect to the factors enumerated in subparagraphs (A) and (B) of § 53a-28 (c) (3), which concern the

defendant’s ability to pay restitution and the defendant’s

financial resources and the burden restitution would

place on him, the court, in its second articulation, stated

that ‘‘[t]he defendant has an earning capacity that would

enable him to make . . . restitution.’’ The court further

elaborated that the defendant graduated from high

school, received a certificate from a Turbo Jet Flight

Engineer course, earned credits from two other programs, has experience in real estate, ‘‘can be of help

in the community in reviving vacant office buildings,’’

has computer skills, can work as a consultant related

to computers and has worked as a consultant from

2008 through 2015. The court also noted in that second

articulation that, at sentencing, in requesting probation,

the defendant stated that he has the ability to work and

further noted that the defendant is supported financially

by his mother.

The court also considered the rehabilitative effect on

the offender of paying restitution and the impact on

the victims pursuant to subparagraphs (C) and (D) of

§ 53a-28 (c) (3). At the sentencing hearing, the court

stated to the defendant: ‘‘[Y]ou knew you had no access

to the funds, and I didn’t know at what point you

decided that you were entitled to it, but . . . these are
hardworking people and I think it’s more important that

there be restitution.’’ In its second articulation, the court

explained that ‘‘[t]he victims here are the individual

condo unit owners who paid their condo fees to the

association so that those funds would be available to

pay the expenses connected with common ownership.

The defendant said he was really sorry and remorseful.

Therefore, the defendant making restitution would

make the victims whole, be an acceptance of responsibility for his criminal conduct, and a step towards rehabilitation.’’ For the foregoing reasons and in light of the

fact that the court articulated its findings on the record

regarding the four factors in § 53a-28 (c) (3) (A) through

(D), we conclude that reversal under the plain error

doctrine is not warranted.

II

The defendant next claims that the court abused its

discretion by denying his motion for an extension of

time within which to begin making restitution payments. We are not persuaded.

We employ an abuse of discretion standard to this

claim. ‘‘When reviewing claims under an abuse of discretion standard . . . great weight is due to the action

of the trial court and every reasonable presumption

should be given in favor of its correctness . . . . In

determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.’’ (Internal quotation marks

omitted.) State v. Francis, 338 Conn. 671, 679, 258 A.3d

1257, cert. denied, Francis v. Connecticut, U.S. ,

142 S. Ct. 292, 211 L. Ed. 2d 136 (2021); see also See

State v. Doriss, 84 Conn. App. 542, 548–49, 854 A.2d 48

(court has broad discretion in imposing sentence), cert.

denied, 271 Conn. 922, 859 A.2d 581 (2004).

As previously stated, the court, at the December 14,

2018 sentencing hearing, ordered the defendant to make

restitution payments of $400 per month beginning in

February, 2019. On May 1, 2019, the defendant filed a

motion for extension of time to begin making restitution

payments. At a May 15, 2019 hearing on that motion,

the defendant stated that he had not made any payments

because the start date of February, 2019, did not provide

him with sufficient time and that he has been trying to

find ways to generate income in order to make the

restitution payments. The court noted that the defendant failed to comply with the terms of probation and

that it had stated at the sentencing hearing that if the

defendant missed two consecutive payments, then the

matter could be referred for a violation of probation.

The court stated that further argument on the motion

would be heard at the next court date in order to provide

the then self-represented defendant with time to provide appropriate documentation.

At a June 17, 2019 hearing,4

the court denied the
motion for an extension of time but ordered the defendant to start making restitution payments beginning on

August 1, 2019. The court noted that, other than pursuing job prospects that were ‘‘highly unlikely’’ to materialize, the defendant did not immediately look for ways

to generate income after having been sentenced in

December, 2018, and that the defendant had a responsibility to find alternative ways to earn the funds to make

the restitution payments. In light of the foregoing,

including the extension of time to August 1, 2019, to

begin making restitution payments, which date was six

months after the original start date of February, 2019,

we conclude that the court’s denial of the motion for

extension of time, was not an abuse of its wide discretion.

III

The defendant claims that the court violated his due

process right to a fair and impartial trial when it questioned him and two of the state’s witnesses, Howles

and Pizzaro, at trial. The defendant acknowledges that

his claim is unpreserved and seeks review pursuant to

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 constitutional 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 constitutional

violation beyond a reasonable doubt.’’ (Emphasis in

original; footnote omitted.) State v. Golding, supra, 239–

40. The record is adequate for review and the claim,

which alleges a violation of a fundamental right, is of

constitutional magnitude. See, e.g., State v. Swilling,

180 Conn. App. 624, 633, 639, 184 A.3d 773 (claim that

court violated defendant’s right to due process by questioning witnesses was of constitutional magnitude),

cert. denied, 328 Conn. 937, 184 A.3d 268 (2018).

We begin with the following principles. ‘‘Due process

requires that a criminal defendant be given a fair trial

before an impartial judge and an unprejudiced jury in

an atmosphere of judicial calm. . . . In a criminal trial,

the judge is more than a mere moderator of the proceedings. It is [the trial judge’s] responsibility to have the

trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be

desired in a judicial proceeding. . . . Consistent with

[her] neutral role, the trial judge is free to question

witnesses or otherwise intervene in a case in an effort

to clarify testimony and assist the jury in understanding

the evidence so long as [the trial judge] does not appear
partisan in doing so. . . . One of the chief roles of the

trial judge is to see that there is no misunderstanding

of a [witness’] testimony. . . . A trial judge can do this

in a fair and unbiased way . . . [and an] attempt to do

so should not be a basis of error. . . . Whether or not

the trial judge shall question a witness is within [her]

sound discretion . . . [and] [i]ts exercise will not be

reviewed unless [s]he has acted unreasonably, or, as it

is more often expressed, abused [her] discretion. . . .

The trial judge can question witnesses both on direct

and cross-examination. . . . [I]t may be necessary to

do so to clarify testimony as [the judge] has a duty to

comprehend what a witness says . . . [and] to see that

the witness communicates with the jury in an intelligible

manner. . . . While no precise theorem can be laid

down, we have held that it is proper for a trial court

to question a witness in endeavoring, without harm to

the parties, to bring the facts out more clearly and to

ascertain the truth . . . and [intervene] where the witness is embarrassed, has a language problem or may

not understand a question. . . . Whe[n] the testimony

is confusing or not altogether clear the alleged jeopardy

to one side caused by the clarification of a [witness’]

statement is certainly outweighed by the desirability

of factual understanding. The trial judge should strive

toward verdicts of fact rather than verdicts of confusion.’’ (Citations omitted; internal quotation marks

omitted.) State v. Iban C., 275 Conn. 624, 651–52, 881

A.2d 1005 (2005). ‘‘Any claim that the trial judge crossed

the line between impartiality and advocacy is subject

to harmless error analysis.’’ State v. Burke, 51 Conn.

App. 328, 335, 723 A.2d 327 (1998), cert. denied, 248

Conn. 901, 732 A.2d 177 (1999).

Mindful of these principles, we first examine the

court’s questioning of Detective Howles and the defendant. Howles testified to the following on direct examination. He became involved in the matter as a result

of Pizarro’s November, 2014 complaint concerning the

finances of the association. Following that complaint

and upon examining the defendant’s personal bank

records, he discovered that the defendant had deposited

into his personal account thirteen checks, totaling

$47,931.60, which had been written from the association

to the defendant and that the defendant had made withdrawals from that same account for expenses related

to the condominium complex as well as for expenses

that the defendant had admitted to Howles were personal, such as for gasoline, groceries, fast food, mortgage payments and cell phone bills. Howles also testified that the defendant’s personal bank records showed

that the only deposits into the defendant’s bank account

were from the association, with the exception of

approximately $1200 to $1300. He further explained that

he only included in his calculation of the defendant’s

personal expenses those that could not possibly be

related to the improvement of the condominium com-
plex. The defendant had no questions for Howles.

Thereafter, the court stated that Howles needed to

‘‘clarify a couple of things’’ and proceeded to elicit the

following testimony from Howles: a phone call from

the treasurer of the association prompted Howles’

involvement; Howles did not recall when the defendant

became the president of the association; Howles had

examined the bank accounts of both the association

and the defendant from January until November or

December, 2014, during which time frame the defendant

was the president of the association; the defendant had

written checks from the association to his personal

bank account in his role as the president of the association; approximately $1200 to $1300 was deposited into

the defendant’s personal banking account from sources

other than the association; the defendant had written

checks from the association to himself, and Howles

included in his calculation of personal expenses only

the withdrawals that could not be possibly related to

expenses for the condominium complex.

We cannot conclude, on the basis of the record, that

the court’s questioning of Howles was inappropriate.

The court stated that its questions were intended to

clarify certain points in Howles’ testimony, and the

record appears consistent with this stated purpose.

‘‘Unlike an appellate court, the trial court is able to

observe the testimony of witnesses firsthand and, therefore, is better able to assess the relative clarity—or lack

thereof—of any particular testimony.’’ State v. Gonzalez, 272 Conn. 515, 536, 864 A.2d 847 (2005). ‘‘[T]he

trial judge is free to question witnesses or otherwise

intervene in a case in an effort to clarify testimony and

assist the jury in understanding the evidence so long

as [s]he does not appear partisan in doing so.’’ (Internal

quotation marks omitted.) State v. Brown, 56 Conn.

App. 26, 29, 741 A.2d 321 (1999), cert. denied, 252 Conn.

927, 746 A.2d 790 (2000).

The defendant, who was the sole defense witness,

testified that he became the president of the association

in order to improve the association, that he used his

personal bank account to fund projects for the association and for personal expenses, that he personally did

work to improve the grounds of the condominium complex, that the association owed him $4558.09 for damage

to his condominium unit that the association had been

reimbursed through an insurance claim, that he wrote

thirteen checks totaling $47,131.60 from the association

to himself in 2014, and that he used $17,515.09 of that

amount for personal expenses. Following the defendant’s redirect testimony, the court, through its questions, elicited the following responses from the defendant: his bank account was ‘‘mixed, business and

personal’’; he began writing checks to himself from the

association’s account in February, 2014; the association’s bank account was electronic and did not require

a signature, but he signed the checks in order to cash
them; the entire $47,931.60 that he deposited from the

association’s account to his personal bank account was

spent to benefit the association and that he reimbursed

himself $17,515.09 that he believed was owed to him,

including $5000 in relation to a lawsuit against the association that he had filed and withdrew concerning an

insurance payment to the association.

Relevant to our analysis, we also note that, during

the self-represented defendant’s narrative testimony on

the third day of trial and outside the presence of the

jury, the court warned the defendant that he had been

told ‘‘time and time again’’ that he could not make

comments or give his opinion of the evidence, that

he was including ‘‘a lot of irrelevant material’’ in his

testimony and that the court did not see any good faith

on his part. The court noted that the defendant had

become disruptive in terms of how he chose to conduct

himself.5

Under these circumstances, we cannot conclude that

the court abused its discretion in intervening to clarify

the defendant’s testimony, particularly in light of his

inclusion of irrelevant material in his testimony and his

disruptive conduct. ‘‘It is appropriate for the trial judge

from time to time to intervene in the conduct of a case.

Thus, when it clearly appears to the judge that for one

reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain

silent. On the contrary, the judge may, by questions to

a witness, elicit relevant and important facts.’’ (Internal

quotation marks omitted.) State v. Fernandez, 198

Conn. 1, 11, 501 A.2d 1195 (1985). The court’s questioning of the defendant, whose testimony lacked clarity, reflected a reasonable and impartial attempt to clarify his testimony to assure that the witness

communicated to the jury in an intelligible manner.

Such an attempt should not be a basis of error. See

State v. Gonzalez, supra, 272 Conn. 535–36. ‘‘Whe[n]

the testimony is confusing or not altogether clear the

alleged jeopardy to one side caused by the clarification

of a [witness’] statement is certainly outweighed by the

desirability of factual understanding.’’ (Internal quotation marks omitted.) Id., 536.

The defendant argues that the court’s questions to

him and to Howles related to testimony that was detrimental and central to his case. However, the fact that

the court’s questions may have drawn attention to the

strength of the state’s case does not render those questions improper. See State v. Smith, 200 Conn. 544, 550,

512 A.2d 884 (1986) (court’s questioning of witness is

not necessarily improper merely because it draws attention to strengths or weaknesses of party’s case). The

court’s questions did not suggest anything about the

credibility of any witnesses, did not advocate in favor

of a particular verdict, or otherwise suggest that it

believed or disbelieved any particular version of the
events. See State v. Swilling, supra, 180 Conn. App.

644–45. Rather, the court impartially asked Howles and

the defendant to restate certain portions of their testimony. Therefore, the questions served merely to clarify

their testimony for the jury. See State v. Gonzalez,

supra, 272 Conn. 537 (‘‘[a court’s] comments or questions for the purpose of clarifying . . . testimony are

permissible and often necessary’’ (internal quotation

marks omitted)), quoting State v. Mack, 197 Conn. 629,

641, 500 A.2d 1303 (1985).

Moreover, the court’s questions did not prejudice the

defendant because the relevant elicited facts were not

truly in dispute. The defendant testified before being

questioned by the court: ‘‘I took the $47,000 from the

condominium complex. I deducted the $17,515.09 that

I used for personal things, such as my mortgage, cable,

and blah, blah, blah, blah, blah, blah. At the end of that,

that leaves a balance of $30,416.51, which were used for

Lincoln Park condominium basics. Therefore, it clearly

illustrates that that account was being used for dual

purposes. Even though, now, it’s a major mistake, I

realize that now.’’ Furthermore, during its charge, the

court, Doyle, J.,

6

issued the following curative instruction to the jury: ‘‘You should not be influenced by the

court’s actions during the trial in ruling on motions or

objections by counsel, or in comments to counsel, or

in questions to witnesses, or in setting forth the law in

these instructions. You are not to take any actions by

the court, either Judge Crawford or myself, as . . .

any indication of our opinion as to how you should

determine the issues of fact.’’ ‘‘Our appellate courts

have always given great weight to curative instructions

in assessing claimed errors . . . especially in assessing

a defendant’s claim of prejudice.’’ (Citations omitted;

internal quotation marks omitted.) State v. Brown,

supra, 56 Conn. App. 29–30.

Finally, the defendant argues that, in the court’s questioning of Pizarro regarding the defendant’s identity, it

acted as an advocate for the state when it asked her

to identify the defendant in the courtroom. During the

prosecutor’s redirect examination of Pizarro, the court

engaged in the following colloquy with Pizarro:

‘‘The Court: Okay. I just have a couple of questions

. . . what I’m not clear on is: first of all, the person

you refer to as the president, Mr. Rosario, the defendant,

would you identify him for the record, please—that’s

not what I wanted to do. . .

‘‘[Pizarro]: Yeah, the person I was identifying as the

president is Mr. Rosario.

‘‘The Court: Just a second—no, is that person in the

courtroom?

‘‘[Pizarro]: Yes, he is.

‘‘The Court: All right. Would you identify him, please.
‘‘[Pizarro]: Mr. Rosario, the defendant.

‘‘The Court: I need—and you need to just describe

something that he’s wearing for the record.

‘‘[Pizarro]: He’s wearing a black suit with a burgundy tie.

‘‘The Court: Okay. All right.

‘‘[Pizarro]: It looks black.

‘‘The Court: Thank you. Okay.’’

This exchange is somewhat troubling. Although

Pizarro had testified on direct examination about her

concerns regarding ‘‘Mr. Rosario’s’’ actions involving

the association’s finances, she did not, either in

response to questioning by the prosecutor or the defendant, make an in-court identification of the defendant

as the person she knew to be ‘‘Mr. Rosario.’’ Thus, this

was not a situation in which the court was clarifying a

witness’ prior ambiguous in-court identification of the

defendant. See, e.g., State v. Swilling, supra, 180 Conn.

App. 641–42 (no due process violation when court questioned victim as to whether ‘‘the person she had identified as the perpetrator of the crimes, and who was

present in the courtroom, was the person she had previously identified as ‘Mr. Swilling’ ’’ because court was

clarifying victim’s prior ambiguous in-court identification of defendant). The court’s questions in the present

case, however, when viewed in context of the entire

trial, did not prejudice the defendant.7

A review of the record reveals that, during the defendant’s questioning of the state’s witnesses, he identified

himself as the person whose conduct was at issue. During the defendant’s cross-examination of Pizarro, which

preceded the court’s questioning of her, he asked: ‘‘On

November 18, you called the police department to say

that I misappropriated $52,931.60.’’ During his crossexamination of Loughlin, who also testified prior to

Pizarro, the defendant inquired as to how Loughlin

became the counsel for the association, and Loughlin

explained, ‘‘[i]t was before I met you and it was

[Pizarro], I think, called me and asked if I was interested.

It was a call out of the—was it you who called?’’ The

defendant responded, ‘‘[i]t was me.’’ When the defendant further inquired as to whether Loughlin had any

financial records of the association, Loughlin explained,

‘‘I do have that, that you generated as a summary of—‘‘

at which point the defendant interjected, ‘‘[t]hat I generated. But [what] I’m asking is something [independent]

of me. . . .’’ During the defendant’s recross-examination of Pizarro, the defendant identified himself as the

individual who allegedly wrote checks in his own name

from the association’s bank account. He asked: ‘‘When

was the first check that I wrote to myself?’’ Pizarro

explained that it was sometime in 2014, and that she

had provided the relevant information to the Waterbury
Police Department. Tremaine Williams, a resident of the

condominium complex, testified on direct examination

that, in 2014, he had performed work in relation to the

condominium complex and that his relationship with

‘‘Mr. Rosario’’ was positive until he received letters from

Pizarro that the accounts of the association were not

balanced. On cross-examination and in response to a

question from the defendant regarding the status of

their friendship prior to 2015, Williams responded:

‘‘[W]e were friends. I’m the one [who] voted you . . .

wanted [you] to be president.’’ The defendant then

asked whether Williams worked for him in 2014, and

Williams responded in the affirmative. In light of questions and responses such as these, we do not see how

the judge’s questioning of Pizarro regarding the defendant’s identity could have improperly influenced the

outcome of the proceedings.

For the foregoing reasons, we conclude that the

defendant has failed to demonstrate that a constitutional violation exists that deprived him of a fair trial.

Accordingly, his claim fails under Golding’s third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also claims that the court abused its discretion in denying

his motion for stay of execution of his probation and his motion for stay

of the conditions of probation. At oral argument before this court, defense

counsel withdrew this claim. We note that this challenge is not reviewable

on appeal. See, e.g., Practice Book § 61-14; Clark v. Clark, 150 Conn. App.

551, 575–76, 91 A.3d 944 (2014) (declining to review claim that trial court

improperly lifted appellate stay because it was improperly presented for

resolution on appeal, rather than by motion for review).

2 The defendant also contends that the court’s first and second articulations are inconsistent with each other because, at the June 17, 2019 hearing

on the defendant’s postverdict motions, which was incorporated by reference into the court’s first articulation, the court determined that there was

no documentation confirming the defendant’s income or employment but

the court in its second articulation had clarified that the defendant had an

earning capacity that would enable him to make the restitution payments.

Even if we were to assume that the court’s statements at the June 17, 2019

postsentencing hearing—that the defendant had not provided the court with

documentation of income or employment—were somehow relevant to the

defendant’s ability to pay restitution at the time of sentencing, those statements are not inconsistent with the court’s statement in its second articulation that the defendant has an earning capacity, which relates to an ability

to earn money in the future. Accordingly, because the actions that form the

basis for the claim of error did not occur, there can be no manifest injustice

warranting reversal of the judgment pursuant to the plain error doctrine.

See, e.g., State v. Moore, 85 Conn. App. 7, 11, 855 A.2d 1006 (claim under

plain error doctrine does not warrant review when trial court’s action does

not result in any manifest injustice), cert. denied, 271 Conn. 937, 861 A.2d

510 (2004).

3 We do not consider the court’s January 8, 2020 articulation, which referenced the June 17, 2019 hearing on postverdict motions at which the defendant testified, in this analysis. We instead confine our review to the evidence

before the court at the time of sentencing.

4 The defendant was represented by counsel at this hearing.

5 At the conclusion of the third day of trial, during which the defendant

testified, the court concluded that the defendant had forfeited the right to

continue to represent himself. The following day, however, the court vacated

its ruling and permitted the defendant to continue to represent himself with

standby counsel.

6

It appears from the record that Judge Doyle charged the jury because

Judge Crawford was unavailable. Neither party raises this as an issue on
appeal.

7 The record does not reflect whether the court’s questioning in this

instance played a role in the defendant’s decision to testify. Nevertheless,

as we discuss, the record reflects that the defendant’s identity was not in

dispute at this point.