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STATE OF CONNECTICUT v. GIOVANNI P.*

(AC 35580)

Gruendel, Alvord and West, Js.

Argued October 15, 2014—officially released February 10, 2015

(Appeal from Superior Court, judicial district of New

Britain, D’Addabbo, J.)

Jon L. Schoenhorn, with whom, on the brief, was

Irene J. Kim, for the appellant (defendant).

Denise B. Smoker, senior assistant state’s attorney,

with whom, on the brief, was Brian Preleski, state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Giovanni P., appeals from

the judgment of the trial court revoking his probation

and imposing an eighty month sentence of incarceration. On appeal, the defendant claims that (1) the court

improperly admitted a video recording of an interview

conducted with his son, F.P.; (2) the court improperly

admitted the testimony of Marcela C., who is the defendant’s former wife and the mother of F.P., as to statements made to her by F.P.; and (3) the state violated

his right to due process by suppressing exculpatory

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

The following facts and procedural history are relevant to the defendant’s appeal. On July 20, 1999, the

defendant pleaded guilty to one count of sexual assault

in the first degree in violation of General Statutes § 53a70 (a) (2) and one count of risk of injury to a child in

violation of General Statutes § 53-21 (a) (2). On October

15, 1999, the defendant was sentenced to a total effective sentence of twelve years incarceration, execution

suspended after five years, and ten years probation

with special conditions. The terms of the defendant’s

probation included the standard conditions that he not

violate any criminal law and that he report to his probation officer as directed. The relevant special conditions

of the defendant’s probation included that he register

as a sex offender and have no unsupervised contact

with minors.2 The defendant’s probation began on October 13, 2004.

In 2004, the defendant met and married Marcela C.,

and the couple had a son, F.P., in 2006. The defendant

was allowed supervised contact with his son after he

completed a family education program. The couple filed

for divorce in July, 2008. Marcela C. claimed that she

witnessed F.P. exhibiting sexualized behaviors sometime in 2010, which she described as ‘‘humping’’ her

boyfriend and his brother. In February, 2011, afterlearning from a babysitter that F.P. had placed an object

between the buttocks of the babysitter’s child, Marcela

C. filed a complaint with the New Britain Police Department. The defendant was arrested for sexual assault in

the first degree in violation of § 53a-70 (a) (2) and risk

of injury to a child in violation of § 53-21 (a) (2).3 The

defendant was subsequently charged with violating the

terms of his probation in violation of General Statutes

§ 53a-32. The warrant alleged three grounds for the

violation:(1)the commission of new crimes,(2) missing

probation appointments, and (3) having unsupervised

contact with F.P.

A violation of probation hearing was held.4

In its oral

decision, the court made three findings by a preponderance of the evidence. First, it found that the defendant

missed scheduled probation appointments, thereby violating the standard condition of his probation requiring
him to report at the direction of his probation officer.5

Second, the court found that the defendant had unsupervised contact with F.P., thus violating the special

condition of his probation that he not have unsupervised contact with any minor.6 Third, the court found

that the defendant had engaged in criminal conduct,

thereby violating a standard condition of his probation

not to violate any laws.7

As a preliminary matter, we set forth general principles of law pertaining to revocation of probation proceedings. ‘‘A revocation of probation hearing has two

distinct components and two purposes. A factual determination by a trial court as to whether a probationer

has violated a condition of probation must first be made.

If a violation is found, a court must next determine

whether probation should be revoked because the beneficial aspects of probation are no longer being served.’’

(Internal quotation marks omitted.) State v. Quinones,

92 Conn. App. 389, 391, 885 A.2d 227 (2005), cert. denied,

277 Conn. 904, 891 A.2d 4 (2006). ‘‘[A] probation revocation proceeding is civil in nature and, therefore, does

notrequire all of the procedural components associated

with an adversary criminal proceeding. . . . As such,

the state’s burden in probation revocation proceedings

is governed by the fair preponderance of the evidence

standard, which is the ordinary civil standard of proof.’’

(Citation omitted; internal quotation marks omitted.)

State v. Holmes, 70 Conn. App. 4, 8, 796 A.2d 561 (2002).

‘‘It is well settled that probation proceedings are informal and that strict rules of evidence do not apply to

them. . . . Hearsay evidence may be admitted in a probation revocation hearing if it is relevant, reliable and

probative.’’ (Citation omitted.) State v. Verdolini, 76

Conn. App. 466, 471, 819 A.2d 901 (2003).

I

The defendant first claims that the court erred in

admitting into evidence a video recording of an interview conducted with F.P. by Erin Byrne, a clinical child

interview specialist at the Children’s Advocacy Center

(center), located at Saint Francis Hospital. The defendant argues that the court erred in admitting the video

recording because (a) it did not satisfy the medical

treatment exception to the hearsay rule, and (b) the

admission of the video recording violated his due process right to cross-examine F.P. We disagree with both

of these claims.

The following additional facts are relevant to the

resolution of the defendant’s claims. After witnessing

the ‘‘humping’’ behaviors sometime in 2010 and after

learning of the incident with the babysitter’s daughter

in February, 2011, Marcela C. contacted the police in

February, 2011. On February 28, 2011, F.P. was interviewed by Byrne. The courtrecounted F.P.’s statements

made during the interview as follows: ‘‘F.P. states that

the father touches him with the finger, does it a lot of
times, father touches the butt, he goes inside, touches

it a lot of times with fingers. Father says, fun, fun. It

really happened. Not pretend. It makes his body feel

funny. F.P. touches father’s body. Father’s body wiggles. Touches father underneath clothes. Touches

father butt and then indicated no more talk about body

parts.’’ The interview was recorded. During the violation

of probation hearing, the state called Byrne as a witness

and also offered the video recording into evidence.8 The

defendant objected to the video, conducted a voir dire

of Byrne, and argued that admission of the video

recording was inadmissible hearsay and would violate

his right to confrontation. The state offered the video

recording under the medical treatment exception to

the prohibition on hearsay testimony. Alternatively, the

state argued that the video recording was admissible

under State v. Shakir, 130 Conn. App. 458, 465, 22 A.3d

1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

After taking a recess until the next morning to review

the law and the arguments, the court admitted the video

recording into evidence. The court addressed the state’s

offer under the medical treatment exception, concluding that the interview was conducted for the purpose

of medical diagnosis and treatment, and therefore was

admissible under State v. Hickey, 135 Conn. App. 532,

551–52, 43 A.3d 701, cert. denied, 306 Conn. 901, 52

A.3d 728 (2012).

A

The defendant first claims evidentiary error, arguing

that the video recording did not satisfy the medical

treatment exception to the hearsay rule. We find no

error.

We first set forth our standard of review. ‘‘To the

extent that a court admits evidence relying on an interpretation of the Connecticut Code of Evidence, our

review is plenary; but . . . where the court’s decision

was an application of the facts to the law, we afford

the trial court’s ruling deference and will only reverse

for an abuse of discretion.’’ State v. Juan V., 109 Conn.

App. 431, 446, 951 A.2d 651, cert. denied, 289 Conn. 931,

958 A.2d 161 (2008). Because the defendant’s evidentiary claim turns on the purpose of the statements made

during the interview, which involves an application of

the facts to the law, the proper standard of review is

abuse of discretion. See State v. Miller, 121 Conn. App.

775, 781, 998 A.2d 170 (reviewing for abuse of discretion

admission under medical treatment exception of

licensed family therapist testimony recounting statements of sexual abuse victim because purpose of victim’s interview determined on the basis of witness

credibility), cert. denied, 298 Conn. 902, 3 A.3d 72

(2010); State v. Donald M., 113 Conn. App. 63, 70, 966

A.2d 266 (‘‘because neither party contends that the

statements in the interview were not hearsay, we need

only determine whether the court properly concluded
that those statements fell within the medical treatment

exception to the hearsay rule’’), cert. denied, 291 Conn.

910, 969 A.2d 174 (2009); State v. Juan V., supra, 109

Conn. App. 446–47.

‘‘We review the trial court’s decision to admit [or

exclude] evidence, if premised on a correct view of the

law . . . for an abuse of discretion. . . . We will make

every reasonable presumption in favor of upholding the

trial court’s ruling, and only upset it for a manifest

abuse of discretion. . . . The trial court has wide discretion to determine the relevancy [and admissibility]

of evidence . . . . In order to establish reversible error

on an evidentiary impropriety . . . the defendant must

prove both an abuse of discretion and a harm that

resulted from such abuse.’’ (Internal quotation marks

omitted.) State v. Hickey, supra, 135 Conn. App. 543.

We next set forth the legal principles relating to the

medical treatment exception to the hearsay rule. ‘‘An

out-of-court statement offered to prove the truth of the

matter asserted is hearsay and is generally inadmissible

unless an exception to the general rule applies.’’ State

v. Hoffler, 55 Conn. App. 210, 215–16, 738 A.2d 1145

(order of probation admissible in probation revocation

proceeding under business records exception), cert.

denied, 251 Conn. 923, 742 A.2d 360 (1999). ‘‘Out-ofcourt statements made by a patient to a physician may

be admitted into evidence if the declarant was seeking

medical diagnosis or treatment, and the statements are

reasonably pertinent to achieving these ends.’’ (Internal

quotation marks omitted.) State v. Cecil J., 99 Conn.

App. 274, 289, 913 A.2d 505 (2007), aff’d, 291 Conn. 813,

970 A.2d 710 (2009). ‘‘The term ‘medical’ encompasses

psychological as well as somatic illnesses and conditions. . . . Furthermore, statements made by a sexual

assault complainant to a social worker may fall within

the exception if the social worker is found to have been

acting within the chain of medical care.’’ (Citations

omitted.) State v. Telford, 108 Conn. App. 435, 440, 948

A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875

(2008). ‘‘In sexual abuse cases, statements made by the

complainant about the identity of the person causing

the injury may be found relevantto proper diagnosis and

treatment.’’ (Internal quotation marks omitted.) State v.

Hickey, supra, 135 Conn. App. 550.9

The defendant challenges the court’s determination

that the video recording was admissible because the

interview was conducted for medical purposes. The

court made several findings in support of its determination. First, the court found credible Byrne’s testimony

regarding her education and certification as a forensic

examiner. Second, the court credited Byrne’s testimony

that the interview she conducted was for medical purposes, that the interview was ‘‘the first modality of

treatment that [a child coming to the center] would

receive,’’ and that she did recommend further treat-
ment. Third, the court further credited other aspects

of her testimony, noting ‘‘she has testified that [the

interview] was conducted in a manner that was based

on her training which indicated a minimization of suggestiveness,’’ she did not coach F.P., and she was the

only person in the room with F.P.10

The defendant has not demonstrated that the court

abused its discretion in determining that the interview

was for medical purposes and, thus, admitting the video

recording into evidence.11 In reviewing the court’s decision, we note that the court relied in part on the testimony of Byrne as to the purposes of the interview

and the manner in which it was conducted. In such

situations, we ‘‘yield to the court’s assessment’’ of the

witness’ credibility. State v. Miller, supra, 121 Conn.

App., 782–83 (deferring to trial court’s assessment of

credibility of family therapist testifying as to purpose

of interview she conducted). The defendant also argues

that the ‘‘hearsay exception for medical treatment and

diagnosis is based upon the speaker’s state of mind—

not that of the person asking the questions.’’ This court

has previously held that this requirement can be satisfied inferentially when the speaker is a juvenile. State

v. Juan V., supra, 109 Conn. App. 446–47. In fact, this

court has upheld the admission of statements made

during an interview of an approximately ten year old

child who ‘‘testified that she did not know why she was

taken to Saint Francis Hospital,’’ where the interview

was conducted. State v. Miller, supra, 777, 782 n.4, 783.

In light of our determination that the court properly

admitted the video recording under the medical treatment exception, we are not required to address the

alternate ground for admission under State v. Shakir,

supra, 130 Conn. App. 465. Because the trial court also

found that the video recording was admissible under

Shakir, however, we briefly note our agreement. In

Shakir, this court upheld the trial court’s admission in

a violation of probation hearing of a video recording

of a forensic interview with a child disclosing sexual

abuse. Id., 461, 465. This court applied the standard

for admission of hearsay evidence in a revocation of

probation proceeding, determining whetherthe hearsay

evidence is ‘‘relevant, reliable and probative.’’ (Internal

quotation marks omitted.)Id., 464. This court explained:

‘‘The [trial] court had before it [the investigating detective’s] testimony that (1) the chain of custody for the

video was intact, (2) the minor complainant was not

influenced as to her answers and (3) as a matter of

procedure, the police department required questioning

to be performed by a licensed clinical social worker

trained to conduct such interviews. Moreover, because

strict admissibility rules do not apply . . . and the trier

of fact was the court, not a jury, it was within the

court’s discretion upon viewing the video to assess the

reliability of the evidence in light of the circumstances

reflected on the video.’’ (Citation omitted.) Id., 465.12 In
this instance, the court had before it equally sufficient

evidence that the hearsay was reliable and probative.

The court found the chain of custody of the video to

be intact. The court had before it Byrne’s testimony

that she did not coach F.P. and also her testimony

regarding her education and training. Therefore, the

trial court did not abuse its discretion in admitting the

video recording.

B

The defendant next claims that, by admitting the

video recording in place of F.P.’s testimony, he was

denied his right to cross-examine an adverse witness in

violation of his rightto due process underthe fourteenth

amendment to the United States constitution.13 Specifically, he claims that the state must ‘‘demonstrate ‘good

cause’ before [the court denies] a probationer the right

to cross-examine the complainant.’’ He argues there

was no good cause in the present case.

‘‘The due process clause of the fourteenth amendment to the United States constitution requires that

certain minimum procedural safeguards be observed in

the process of revoking the conditional liberty created

by probation.’’(Internal quotation marks omitted.) State

v. Faraday, 268 Conn. 174, 182, 842 A.2d 567 (2004).

The basic requirements include: ‘‘(a) written notice of

the claimed violations of [probation]; (b) disclosure to

the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and

documentary evidence; (d) the right to confront and

cross-examine adverse witnesses (unless the hearing

officer specifically finds good cause for not allowing

confrontation); (e) a ‘neutral and detached’ hearing

body . . . [the] members of which need not be judicial

officers or lawyers; and (f) a written statement by the

factfinders as to the evidence relied on and reasons for

revoking [probation].’’ Morrissey v. Brewer, 408 U.S.

471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); see

also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct.

1756, 36 L. Ed. 2d 656 (1973) (extending due process

requirements outlined in Morrissey for parole hearings

to probation hearings).

‘‘In considering whether the court had good cause

for not allowing confrontation or ‘that the interest of

justice [did] not require the witness to appear’; Fed. R.

Crim. P. 32.1 (b) (2) (C); the court should ‘balance, on

the one hand, the defendant’s interest in confronting the

declarant, against, on the other hand, the government’s

reasons for not producing the witness and the reliability

of the proffered hearsay.’ ’’ State v. Shakir, supra, 130

Conn. App. 468. Federal decisions have suggested, however, that the court is not required to conduct such

balancing in all circumstances. ‘‘[U]nder [United States

v. Jones, 299 F.3d 103, 113 (2d Cir. 2002)], the balancing

analysis need not be made where the proffered outof-court statement is admissible under an established
exception to the hearsay rule.’’ United States v.

Aspinall, 389 F.3d 332, 344 (2d Cir. 2004); see United

States v. Jones, supra, 113 (requirement that court consider government’s grounds for not allowing confrontation did not apply because statements were admissible

under excited utterance exception).

The defendant argues that his due process right to

cross-examine F.P. has been violated because, without

good cause, he was unable to cross-examine F.P. concerning the hearsay statements that were admitted into

evidence through the video recording. The defendant

fails to acknowledge, however, that the cases he cites

in his brief illustrate that the admission of F.P.’s statements under an established hearsay exception, as with

the medical treatment exception in the present case,

impacts the analysis as to whether good cause has been

established. In United States v. Taveras, 380 F.3d 532,

536 (1st Cir. 2004), the court stated that ‘‘[a]n important

element of the good cause analysis is the reliability of

the evidence that the Government seeks to introduce.’’

The first indicia of reliability the court considered was

whether the hearsay was admissible under the excited

utterance exception. See id., 537; see also United States

v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (‘‘A proffered

hearsay statement that falls within an established

exception is of course admissible in a [violation of

supervised release] hearing. For statements that would

be inadmissible under the Federal Rules of Evidence,

a determination of ‘good cause’ requires the court to

balance ‘the defendant’s interest in confronting the

[declarant against] . . . the government’s reasons for

not producing the witness and the reliability of the

proffered hearsay.’ ’’ [Emphasis added.]), cert. denied,

U.S. , 133 S. Ct. 837, 184 L. Ed. 2d 664 (2013).

Because F.P.’s statements were admitted into evidence

under the medical treatment exception, the admission

of the video recording did not violate the defendant’s

right to due process under the fourteenth amendment

to the United States constitution.

II

The defendant next claims that the court erred in

admitting the testimony of Marcela C. as to statements

made to her by F.P. The following additional facts are

relevant to this claim. Marcela C. testified that F.P.

began to do inappropriate things in 2010, such as

‘‘humping my boyfriend and his brother.’’ When asked

whether she had talked to F.P. about these behaviors

and what he told her about them, the defendant

objected. The state argued that the testimony was

admissible as reliable hearsay under State v. Dollinger,

20 Conn. App. 530, 541, 568 A.2d 1058, cert. denied, 215

Conn. 805, 574 A.2d 220 (1990), because the statement

contained content that was beyond the ken of a child

of F.P.’s age. The defendant argued that (1) Marcela C.,

having been involved in an ‘‘ugly divorce,’’ had motive
to hurt the defendant, and (2) the statement of F.P. was

not reliable because it is hearsay and the defendant

might not later have an opportunity to question F.P.

about the statement if he does not testify. The court

took a brief recess to review Dollinger and then overruled the defendant’s objection. Marcela C. then testified as to statements of F.P., that ‘‘he said that’s what

his father does to him,’’ and ‘‘he said my father’s pee

pee comes with mine . . . .’’

The defendant claims that the statements were unreliable hearsay, and that the court failed to ‘‘consider

the requirement that uncorroborated hearsay is only

admissible if there is good cause to excuse the presence

of the declarant.’’ He specifically argues that the court

abused its discretion by ‘‘[t]he . . . admission of this

testimony [that] was not corroborated by any physical

evidence, not repeated to an unbiased professional, and

the act itself was something that a four year old could

mimic after witnessing animals engage in such act

. . . .’’ We are not persuaded.

The central arguments as to whetherthe court abused

its discretion in admitting the statements are premised

on State v. Dollinger, supra, 20 Conn. App. 530. In that

case, a twenty-eight month old child exhibited sexualized behaviors, leading the child’s mother to ask who

had showed her these behaviors and what else she had

learned. Id., 532–33. The child named her uncle as the

person who had showed her the behaviors. Id. This

court upheld the trial court’s admission of the testimony

of the child’s mother and her boyfriend as to the statements made by the child to them under the residual

exception to the hearsay rule. Id., 542. In making its

determination of reliability and trustworthiness, this

court considered the following factors: (1) the child

demonstrated sexual behavior that was inappropriate

for her age, (2) there was no suggestion that the child

was coached or prompted, (3) the statement was corroborated by physical evidence of injury, and (4) the

defendant had sufficient opportunity to cross-examine

the testifying witnesses as to any bias. Id., 541–42.

The trial court in the present case, in ruling on the

defendant’s objection, noted: ‘‘[T]he state’s position is

based in large part on the ruling in Dollinger. The court

has had an opportunity to review that case. First of all,

Dollinger was not a violation of probation hearing case;

it was a trial and this is a violation of probation hearing

which starts out with the ability for hearsay evidence to

be allowed. It is allowed if it can be found as probative,

reliable and there’s some . . . indicia of reliability.’’

We are mindful that ‘‘[i]t is well settled that the strict

rules of evidence do not apply to probation proceedings.

. . . It is just as well settled that hearsay evidence is

admissible in a probation revocation hearing when the

evidence is relevant, reliable and probative.’’14 (Citations omitted.) State v. Gumbs, 94 Conn. App. 747, 751,
894 A.2d 396, cert. denied, 278 Conn. 917, 899 A.2d 622

(2006). The trial court properly noted that the statements by F.P. were probative in that they were in

response to his mother’s question about the conduct

he was exhibiting. The court also indicated that the

statements were reliable, in that the behavior he exhibited was not behavior that would normally be exhibited

by a young child of F.P.’s age. The court further noted

that there was no evidence of any coaching or leading

questioning by Marcela C. and that the defendant would

have the opportunity to cross-examine Marcela C. as

to any bias.15 The court clearly articulated the proper

considerations in ruling on the defendant’s objection,

and we, thus, determine that the testimony was properly admitted.

The defendant challenges the trial court’s findings

that the statements were probative and reliable. The

defendant attempts to distinguish Dollinger by noting

that the child in Dollinger was determined incompetent

to testify and was, therefore, unavailable, and that there

was corroboration of the child’s statements. This court

has considered the application of the Dollinger factors16

to a civil case, noting: ‘‘Dollinger provides a list of

various factors that the court may consider, if relevant

to the particular case, in determining the admissibility

of third party statements under the residual exception

to the rule against hearsay. The list is neither determinative nor rigid.’’ Doe v. Thames Valley Council for Community Action, Inc., 69 Conn. App. 850, 862–63, 797

A.2d 1146 (disagreeing with defendants that court was

required to take account of lack of corroborating physical evidence where alleged sexual assault involved

improper touching), cert. denied, 261 Conn. 906, 804

A.2d 212 (2002). This court also rejected the idea that

‘‘a balance sheet approach governs a court’s exercise

of its discretion. Admissibility in a civil case does not

turn on how many Dollinger factors a plaintiff can

establish.’’ Id., 859. To the extent that the defendant’s

argument is premised on the fact that the circumstances

in Dollinger provided a stronger basis for admitting the

hearsay statements, it must be taken into account that

a probation revocation proceeding is ‘‘not a criminal

proceeding butis instead more akin to a civil proceeding

. . . .’’ State v. Lantz, 120 Conn. App. 817, 822, 993

A.2d 1013 (2010). Therefore, the statements were only

required to satisfy the standard that the trial court correctly set out, namely, that the hearsay statements be

relevant, reliable, and probative. We, thus, determine

there was no error in the admission of Marcela C.’s testimony.

III

The defendant lastly claims that the state violated

his due process rights by suppressing exculpatory information. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.

Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, he claims
that the state ‘‘fail[ed] to disclose to the defense prior

to or during the trial the impeachment evidence pertaining to [the center] and Byrne, including the stated

law enforcement purposes of the forensic interview,

and by failing to correct the misleading testimony that

the interview was for medical purposes.’’ The defendant

further argues that ‘‘it was the obligation of the state

to disclose in a timely manner the fact that the [center]

is funded by federal law enforcement and [Department

of Children and Families] dollars . . . .’’17

The defendant concedes ‘‘that he did not separately

assert a claim of prosecutorial impropriety [at trial]

due to the withholding of Brady material.’’ He argues,

however, that ‘‘[a] claim that the state failed to disclose

exculpatory evidence in a timely fashion necessarily

requires no trial preservation, since Brady violations

normally arise after trial.’’ We disagree with the defendant’s argument that his claim does not need to be

preserved in the trial court, and, as a result, does not

require an analysis under State v. Golding, 213 Conn.

233, 567 A.2d 823 (1989).18 See Skakel v. State, 295 Conn.

447, 521, 991 A.2d 414 (2010) (declining to address

Brady claims in part because trial court had not ruled

on them nor had defendant requested Golding review);

State v. Ouellette, 295 Conn. 173, 186–87, 989 A.2d 1048

(2010) (conducting Golding review of Brady claim that

was not made at trial). Because the defendant did not

raise his claim before the trial court, it must be reviewed

under Golding. We determine that the first two prongs

of Golding are satisfied, and we, thus, consider whether

his claim satisfies the third prong, which requires that

‘‘the alleged constitutional violation clearly exists and

clearly deprived the defendant of a fair trial . . . .’’

State v. Golding, supra, 240.

The constitutional violation claimed by the defendant

is the suppression of impeachment evidence by the

state. ‘‘In Brady v. Maryland, supra, 373 U.S. 87, the

United States Supreme Court held that the suppression

by the prosecution of evidence favorable to an accused

. . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.’’ (Internal

quotation marks omitted.) State v. Rivera, 152 Conn.

App. 248, 255, 96 A.3d 1285, cert. denied, 314 Conn. 934,

102 A.3d 85 (2014). ‘‘To establish a Brady violation,

the [defendant] must show that (1) the government

suppressed evidence, (2) the suppressed evidence was

favorable to the [defendant], and (3) it was material

[either to guilt or to punishment]. . . . Impeachment

evidence as well as exculpatory evidence falls within

Brady’s definition of evidence favorable to an accused.’’

(Citation omitted; internal quotation marks omitted.)

State v. Richard W., 115 Conn. App. 124, 137, 971 A.2d

810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009).

We determine that the defendant cannot satisfy Gold-
ing’s third prong. He has not established that the alleged

constitutional violation clearly exists because the

defendant failed to establish that any evidence was

suppressed. See State v. Collic, 55 Conn. App. 196, 207,

738 A.2d 1133 (1999). ‘‘[E]vidence is not considered to

have been suppressed within the meaning of the Brady

doctrine if the defendant or his attorney either knew,

or should have known, of the essential facts permitting

him to take advantage of [that] evidence. . . . Documents that are part of public records are not deemed

suppressed if defense counsel should know of them

and fails to obtain them because of lack of diligence

in his own investigation.’’ (Citations omitted; internal

quotation marks omitted.) United States v. Payne, 63

F.3d 1200, 1208 (2d Cir. 1995); see also State v. Simms,

201 Conn. 395, 407, 518 A.2d 35 (1986)(‘‘any information

bearing on . . . credibility as a witness was as available to the defendant as it was to the state, or could

have been discovered through reasonably diligent

research’’); State v. Richard W., supra, 115 Conn. App.

143 (‘‘federal actions were a matter of public record to

which the state and the defendant had equal access’’).

The evidence that the defendant claims was suppressed includes: (1) material published on the center’s

website about the center, the interviews it conducts,

and its funding sources, and (2) information suggesting

collaboration between the center and the state’s attorney’s office. This evidence was not suppressed within

the meaning of that term. With regard to the defendant’s

claim concerning suppression of information published

on the center’s website, we determine that the information was as available to the defendant as it was to the

state; State v. Simms, supra, 201 Conn. 407; and was

either already known or could have been discovered

by the defendant. During arguments before the trial

court as to the admissibility of the video recording, the

defendant’s counsel claimed that ‘‘a large part of the

budget for [the center] is paid by the Chief State’s Attorney’s Office,’’ but noted that he did not have any proof

at the time to support the claim.19 Moreover, on appeal,

the defendant cites a case in his brief in which this

court considered an argument as to whetherthe funding

sources of the same center impacted the determination

as to whether an interview conducted there was for

medical purposes. That argument proved unsuccessful.20

The defendant’s second alleged impropriety regarding his Brady claim is that the state argued for admission of the video recording under the medical treatment

exception, while ‘‘knowing that [the center] asserts that

its forensic interviews are conducted in collaboration

with [the state’s attorney’s] office under a statutorilymandated interdisciplinary investigation scheme.’’ The

defendant does not identify any particular evidence that

was suppressed, but rather argues that the impropriety

was in offering false or misleading testimony. In support
of this claim, the defendant merely cites to provisions

of our General Statutes, which he claims ‘‘inform [the]

analysis’’ as to the collaboration that he argues is evidence of false testimony. Having reviewed the record

in light of the defendant’s arguments, we conclude that

the defendant has not established that the state offered

false or misleading testimony.21

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual assault and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

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

his motion for a new hearing or to open the judgment. That claim fails for

a number of reasons. See footnote 17 of this opinion.

2 Other special conditions imposed included that he earn a GED, maintain

full-time employment, and have no contact with the victim or the victim’s

family.

3 The defendant filed with this court two motions to amplify the record

to include the proceedings following from these charges. Both of his motions

were dismissed. In his reply brief, the defendant again attempts to have

these proceedings considered, in this instance, by asking this court to take

judicial notice of a written memorandum of decision resulting from these

proceedings. Trial court decisions are not binding on this court. See Conway

v. Wilton, 238 Conn. 653, 673 n.12, 680 A.2d 242 (1996) (noting that decision

of Appellate Court was not binding on Supreme Court and ‘‘tak[ing] no

position as to its propriety’’). We therefore decline to considerthat memorandum of decision.

4 The state called three witnesses during its case-in-chief: Robert Moreau,

a probation officer who had supervised the defendant; Marcela C.; and Erin

Byrne, a clinical child interview specialist.

5 The court credited Moreau’s testimony that, over the course of the

defendant’s probation, he failed to report as directed on six occasions,

including February 6, 2007, March 2, 2007, February 21, 2008, October 29,

2008, September 22, 2009, and May 18, 2010. Moreau did not report the

defendant for violating the terms of his probation upon missing these

appointments, but when he reported the defendant after his arrest, he

included the missed appointments as a violation.

6 The court credited Marcela C.’s testimony that the defendant had been

alone when picking up F.P. for visits.

7 The court credited testimony of Marcela C. and statements made by F.P.

in the diagnostic interview in finding by a preponderance of the evidence

that the defendant had engaged in conduct that would satisfy the elements

of sexual assault in the first degree and risk of injury to a child.

8 The defendant previously had filed a motion in limine to exclude the

video recording. The defendant argued that the evidence should be excluded

as violative of the hearsay rule and the due process clause. The court heard

brief argument from the defendant’s counsel and stated that it would hear

from counsel again on the issue when the state offered the video recording.

9 This court in State v. Hickey, supra, 135 Conn. App. 536, 549, upheld

the admission of testimony of a witness trained as a pediatric nurse-practitioner and forensic medical examiner as to statements made to her by the

victim. The defendant argues that the trial court’s reliance on Hickey was

erroneous. Specifically, he argues that ‘‘[b]y conflating a forensic medical

examiner’s testimony with a forensic interviewer’s efforts to question a

child, the trial court erased any distinction between these two very different

procedures.’’ His argument as to a purported erroneous reliance on Hickey

is irrelevant because there is sufficient case law to support the admission

of a video recording of an interview conducted by the type of interviewer

in this case. See State v. Donald M., supra, 113 Conn. App. 68, 69, 71 (portions

of video recording of interview conducted by clinical child interview specialist admissible under medical treatment exception); State v. Juan V., supra,

109 Conn. App. 445 and n.10, 447 (entire video recording of interview conducted by clinical child interview specialist admissible under medical treatment exception).

10 An investigative social worker from the Department of Children and
Families was present behind a two-way mirror. No police were present.

11 The defendant claims that this court’s decision in State v. Carey, 30

Conn. App. 346, 355, 620 A.2d 201 (1993), rev’d on other grounds, 228 Conn.

487, 636 A.2d 840 (1994), is dispositive of his claim that the video recording

was improperly admitted. In Carey, this court reversed the decision of the

trial court revoking the probation of a defendant because the only evidence

presented at the hearing, two hearsay police reports, was insufficient to

establish a probation violation. Id., 355–56. This court noted that ‘‘[p]ursuant

to [State v.] White, [169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025,

96 S. Ct. 469, 46 L. Ed. 2d 399 (1975)], hearsay testimony is admissible only

if it is supported by other evidence.’’ Id., 354. The reports in Carey were

not offered or admitted as business records, and this court noted that ‘‘[t]he

reports . . . do not qualify for admission as evidence under any established

exception to the hearsay rule.’’ Id., 351.

We do not need to reach the defendant’s claims under Carey that, because

the hearsay evidence was unsupported, it should have been excluded,

because we conclude that the court properly admitted the video recording

under the medical treatment exception. See State v. Huckabee, 54 Conn.

App. 758, 763, 738 A.2d 681 (1999) (declining to reach issue as to whether

attendance records were admissible under looser standards of probation

revocation hearings which allow admissibility of hearsay evidence if reliable

and not unsupported because records were properly admitted under business record exception).

12 Recognizing that the trial court did not have the benefit of our Supreme

Court’s recent decision in State v. Carrion, 313 Conn. 823, 839–40, 100 A.3d

361 (2014), we nevertheless note that it provided: ‘‘Courts have identified

the following nonexclusive factors, among others, as particularly salient in

determining the threshold reliability of a child’s disclosure of sexual abuse

during a forensic interview: (1) the child’s age; (2) the child’s actions or

use of words outside the normal behavior or lexicon of a child of a similar

age; (3) the spontaneity of the child’s statements; (4) the extent to which

the interviewer investigated alternative sources of the child’s familiarity

with sex; (5) the interviewer’s use of leading or suggestive questions; (6)

the nature of the abuse or assault; (7) indications that the child has been

coached; and (8) the presence of a parent or authority figure.’’ Relevant to

these considerations are the following trial court findings:(1)the description

of the defendant’s conduct by F.P. was beyond the knowledge of a four to

five year old boy, (2) Byrne testified that the interview was conducted in

such a way that minimized suggestiveness, (3) Byrne testified that she did

not coach F.P., and (4) Byrne was the only person in the room with F.P.,

except for an investigative social worker behind a two-way mirror. While

a number of these findings were made prior to viewing the video, the court

expressly noted that it ‘‘can always revisit it’’ after it viewed the video if

there was any appearance of unreliability. In the court’s oral decision finding

that the defendant had violated conditions of his probation, which was

delivered after the video had been viewed, the court referenced its earlier

ruling on the video recording and incorporated it into its decision.

13 The defendant does not argue that there was a violation of his constitutional rights under the confrontation clause of the sixth amendment to the

United States constitution, as shown by the following statement in his reply

brief: ‘‘The state’s detour into confrontation clause analysis and its relevance

to probation violation hearings . . . has nothing to do with the defendant’s

arguments.’’ The defendant noted that he ‘‘expressly relied upon the due

process clause of the fourteenth amendment and the well-established due

process right to confront witnesses at such hearings.’’

14 The defendant argues that ‘‘the court failed to consider the requirement

that uncorroborated hearsay is only admissible if there is good cause to

excuse the presence of the declarant.’’ A review of the transcript reveals that

the defendant’s objection to the admission of F.P.’s statements to Marcela C.

included two arguments: (1) the witness had motive to hurt the defendant

as a result of their divorce and (2) the statements were not reliable. When

the trial court ruled on the objection, it addressed the defendant’s objection

as to the credibility of the witness and the reliability of the hearsay statements. Thus, the defendant’s claim on appeal that the admission of Marcela

C.’s testimony denied him the right to confront and cross-examine witnesses

was not presented to the trial court. We further note that, under Golding,

the defendant’s claim cannot be reviewed because it fails to satisfy the first

prong, which requires that ‘‘the record is adequate to review the alleged

claim of error.’’ State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989).

Because the defendant failed to object to the admission of the testimony
as a violation of his due process right to cross-examine an adverse witness,

the court had no occasion to consider whether there was good cause not

to allow confrontation. Therefore, the record is inadequate for review of

that claim.

15 Indeed, the court indicated in its oral decision that it ‘‘has considered

the testimony of [Marcela C. and] has also considered the credibility . . .

challenges to [Marcela C.] by the defense.’’

16 In Dollinger, the court considered ‘‘the age of the child, the nature of

the assault, the presence of physical evidence of that assault, the relationship

of the child to the defendant, the spontaneity of the statement, the reliability

of the statements themselves and the reliability of the testifying witness.’’

State v. Dollinger, supra, 20 Conn. App. 541.

17 The defendant additionally claims that the court abused its discretion

in denying his motion for a new hearing or to open the judgment for the

purposes of impeaching Byrne as to the center’s funding sources and purpose. Assuming, arguendo, that the procedures available to a criminal defendant to obtain a new trial under Practice Book §§ 42-53 and 42-55 are

available to a defendant in a probation revocation proceeding, the defendant’s claim still fails for a number of reasons. First, his claim is, in essence,

that he was unable to question Byrne on the information that he obtained

from the center’s website subsequent to the close of the probation revocation

hearing. This is a claim based on newly discovered evidence, which cannot

be filed pursuant to § 42-53. State v. Santaniello, 96 Conn. App. 646, 672,

902 A.2d 1 (‘‘A motion for a new trial under Practice Book [§ 42-53] is limited

to trial errors, and cannot be based upon newly discovered evidence. . . .

The defendant must bring a petition under [§ 42–55] if he wishes to seek a

new trial based upon newly discovered evidence.’’ [Internal quotation marks

omitted.]), cert. denied, 280 Conn. 920, 908 A.2d 545 (2006); see State v.

Gonzalez, 106 Conn. App. 238, 260, 941 A.2d 989 (trial court lacked authority

to consider defendant’s motion for new trial on basis of newly discovered

evidence), cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). Second, even

if the defendant had properly brought a petition for a new trial under § 42-

55, he would not be able to satisfy the four prong test, the first prong of

which requires that ‘‘the proffered evidence is newly discovered, such that

it could not have been discovered earlier by the exercise of due diligence

. . . .’’ (Emphasis omitted; internal quotation marks omitted.) Williams v.

Commissioner of Correction, 100 Conn. App. 94, 100, 917 A.2d 555, cert.

denied, 282 Conn. 914, 924 A.2d 140 (2007). Here, the evidence that the

defendant sought to use to impeach Byrne was found on the center’s website,

and therefore ‘‘could have been known with reasonable diligence . . . .’’

(Internal quotation marks omitted.) Id., 101. Third, ‘‘[n]ew trials are not

granted upon newly discovered evidence which discredits a witness unless

the evidence is so vital to the issues and so strong and convincing that a

new trial would probably produce a different result.’’ (Internal quotation

marks omitted.) State v. Newton, 59 Conn. App. 507, 512, 757 A.2d 1140,

cert. denied, 254 Conn. 936, 761 A.2d 764 (2000). Accordingly, the defendant’s

claim fails.

18 Under State v. Golding, supra, 213 Conn. 239–40, ‘‘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 clearly exists and clearly 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.).

19 The defendant’s counsel stated: ‘‘Your Honor, it’s my understanding, I

don’t have any proof today, but it’s my understanding that a large part of

the budget for the Saint Francis facility that does this is paid by the Chief

State’s Attorney’s Office. I do not see that therefore being medically related.

It’s an investigation tool; that’s what it is.’’

20 In State v. Juan V., supra, 109 Conn. App. 447 n.11, this court noted:

‘‘The defendant argues that because some of the funding for the advocacy

center came from the office of the chief state’s attorney, the mission of the

advocacy center is more closely aligned with the goals of law enforcement

than with the goals of medical treatment. Although the medical treatment

exception explicitly requires that the interviewee have the purpose of

obtaining medical treatment, we also believe it is implicit in this rule that

the interviewer must also have the purpose of providing medical treatment.

In this instance, regardless of whatever other purposes this interview proto-
col may have served, it met the parameters of the exception; [the victim]

went to the advocacy center for medical treatment, and [a clinical child

interview specialist] interviewed her to assess her health care needs.’’

21 The defendant relies on Adams v. Commissioner of Correction, 309

Conn. 359, 371, 71 A.3d 512 (2013), in which our Supreme Court explained:

‘‘When . . . a prosecutor obtains a conviction with evidence that he or she

knows or should know to be false, the materiality standard is significantly

more favorable to the defendant. [A] conviction obtained by the knowing

use of perjured testimony is fundamentally unfair, and must be set aside if

there is any reasonable likelihood that the false testimony could have

affected the judgment of the jury.’’ (Emphasis added; internal quotation

marks omitted.) In ruling on the defendant’s motion for a new hearing, the

court, after hearing the defendant’s arguments that the centeris ‘‘an advocacy

center [and] its purpose is to investigate these claims . . . analogous to

the police,’’ reiterated that it had found Byrne’s testimony as to the purpose

for conducting the interview credible. Thus, we will not conclude that the

state offered false or misleading testimony.