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*********************************************** 
STATE OF CONNECTICUT v. ROBERT LEMANSKI

(AC 41785)

Bright, C. J., and Cradle and Suarez, Js.

Syllabus

Convicted, after a jury trial, of the crime of operating a motor vehicle while

under the influence of intoxicating liquor, the defendant appealed to

this court. Held:

1. The defendant could not prevail on his unpreserved claim that his constitutional right to confrontation was violated when the trial court allowed

C, the state trooper who arrested him, to testify that the defendant’s

son, L, told him that the defendant had consumed two drinks on the

night that he was arrested; even if this court assumed that C’s testimony

was inadmissible hearsay that violated the defendant’s right to confrontation, the defendant’s claim failed under the fourth prong of State v.

Golding (213 Conn. 233) because C’s testimony was harmless beyond

a reasonable doubt, as the state’s case against the defendant was strong

and L’s statement to C was cumulative and unlikely to have influenced

the jury’s verdict.

2. The defendant could not prevail on his unpreserved claim that the trial

court improperly instructed the jury regarding his alleged refusal to

submit to a breath test at the time of his arrest:

a. Contrary to the defendant’s claim, the trial court did not commit plain

error in instructing the jury that it could ‘‘make any reasonable inference

that follows’’ from the defendant’s alleged refusal to submit to a breath

test, as the court’s instruction substantially complied with the applicable

statute (§ 14-227a (e)) and did not, when read in the context of the

court’s entire instructions, mislead the jury; moreover, the defendant

implicitly waived his claim that the court’s instruction diluted the state’s

burden of proof and violated his constitutional right to due process, as

the court provided the defendant with a copy of its instructions thirteen

days before the preliminary charge conference, the defendant had ample

time to review the instructions, the court reviewed the instructions with

counsel on the record, soliciting comments and proposed modifications,

and both counsel affirmatively, and repeatedly, expressed their satisfaction with the court’s instructions.

b. The defendant’s claim that the trial court committed plain error when

it instructed the jury that his alleged refusal to submit to a breath test

could be construed as consciousness of guilt because such an instruction

was not factually supported by the evidence in view of the fact that he

agreed to a blood test was unavailing: that court did not err in instructing

the jury on consciousness of guilt, as C testified, without objection, that

the defendant agreed to submit to a breath test, then changed his mind,

vacillating several times before he requested a blood test, and, therefore,

the court’s instruction advising the jury of its obligation to determine

whether the defendant refused the breath test was not only proper but

was necessary; accordingly, the court’s instructions to the jury pertaining

to the consciousness of guilt evidence did not rise to the level of egregiousness and harm that would warrant reversal under the plain error

doctrine.

Argued September 16—officially released November 17, 2020

Procedural History

Substitute information charging the defendant with

the crime of operating a motor vehicle while under the

influence of intoxicating liquor, brought to the Superior

Court in the judicial district of Litchfield at Torrington

and tried to the jury before Noble, J.; verdict and judgment of guilty, from which the defendant appealed to

this court. Affirmed.

Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).

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

with whom, on the brief, were Dawn Gallo, state’s attorney, and Jonathan Knight, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

CRADLE, J. The defendant, Robert Lemanski, appeals

from the judgment of conviction, rendered after a jury

trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1). On appeal, the defendant claims

that (1) his constitutional right to confrontation under

the sixth amendment to the United States constitution

was violated when the trial court improperly admitted

testimonial hearsay into evidence, and (2) the trial court

improperly instructed the jury regarding his alleged

refusal to submit to a breath test at the time of his

arrest. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On the night of December 30, 2016, Connecticut

State Trooper Matthew Costella was on general patrol

in the areas of Harwinton and Burlington. At approximately 9 p.m., he was sitting in his police cruiser in a

church parking lot at the intersection of Routes 4 and

118, when he observed a passing motor vehicle that did

not have its rear registration plate illuminated. Costella

pulled out behind the vehicle, onto Route 4 heading

eastbound toward Burlington, and followed it for

approximately one mile, when he observed the vehicle

cross over the white fog line. On the basis of his observations, the registration plate light infraction and the manner of operation of the vehicle, Costella turned on the

emergency lights of his cruiser and pulled the vehicle

over to the right side of the road. Another vehicle also

pulled over ahead of the vehicle that Costella was

stopping.

Costella approached the vehicle and asked the operator, the defendant, for his license, registration and insurance, to which the defendant responded, ‘‘That’s a lot

of questions.’’ Costella then asked the defendant where

he was coming from and the defendant stated that he

was coming from Harwinton. When Costella asked

where in Harwinton, the defendant responded that he

was coming from the New Milford area, but then stated

that he was coming from Torrington where he had

played golf with his son, Steven Lemanski. During the

foregoing exchange, the defendant searched for the

documents that Costella had requested. Costella

requested them a second time and referred the defendant to his wallet, which was located in plain sight on

the passenger seat.

Costella asked the defendant if he had had anything

to drink, and the defendant responded, ‘‘no, nothing.’’

Costella noticed that the defendant’s speech was

slurred and his eyes were glassy. He advised the defendant that he could smell alcohol on his breath. When

Costella asked the defendant if he had any medical

conditions, the defendant responded that he did not.

Costella conducted a test that he referred to as a ‘‘brief’’
or ‘‘modified’’ horizontal gaze nystagmus test, looking

for an involuntary jerking of the eyes, to determine

if the defendant had been drinking. Costella told the

defendant that he could see his eyes bouncing.

Costella asked the defendant if he knew who was in

the vehicle that had pulled over ahead of them, and the

defendant told Costella that it was Steven Lemanski.

At Costella’s request, the defendant used his cell phone

to call Steven Lemanski and asked him to back his

vehicle up to them. Once Steven Lemanski had backed

up, Costella approached his vehicle and asked him if

the defendant had any medical conditions, and he told

Costella that the defendant did not. Steven Lemanski

confirmed that they had been playing golf in Torrington

and, when Costella asked if the defendant had consumed any alcohol that night, Steven Lemanski told

him that the defendant had two drinks while he was

with him.

After speaking with Steven Lemanski, Costella

returned to his cruiser and called for backup so that

he could conduct the standard field sobriety tests to

determine if the defendant was intoxicated. After two

additional troopers arrived, Costella performed three

field sobriety tests—the horizontal gaze nystagmus test,

the walk and turn test and the one leg stand test. When

the defendant emerged from his vehicle, Costella

observed that he was having trouble maintaining his

balance. The defendant failed to perform any of the

three tests to standard. On the basis of his observation

of the defendant’s operation of his vehicle, his observations of the defendant after he stopped the vehicle, and

the results of the field sobriety tests, Costella determined that the defendant was under the influence of

alcohol. Costella arrested him and transported him to

the state police barracks for processing.

Upon arriving at the barracks, Costella advised the

defendant of his rights and informed him that he would

be requested to submit to a blood, breath or urine test,

which must be administered within two hours of the

time of his operation of the motor vehicle.1 The defendant asked that he be allowed to contact an attorney,

and he was permitted to call his wife to ask her for a

telephone number of an attorney. Costella also looked

up an attorney on the Internet at the defendant’s request

and provided him with telephone books so he could

look up other attorneys. The defendant was unable to

contact an attorney, and Costella asked him to submit

to a breath test. The defendant first indicated that he

did not want to take a breath test, then changed his

mind and agreed to take a breath test, then changed

his mind again and stated that he did not want to take

a breath test. The defendant eventually told Costella

that he wanted to take a blood test. Because the administration of a blood test must be done at a hospital,

blood tests generally are not offered due to the two
hour window during which the test must be conducted.

Costella thus continued to offer the defendant a breath

test, while the defendant continued to request a blood

test. Eventually another officer, Trooper Matthew Cashman, also offered the defendant a breath test, and the

defendant refused.

The defendant was charged with and tried for

operating a motor vehicle while under the influence

of intoxicating liquor in violation of § 14-227a (a) (1).

Following trial, the jury found him guilty, and the court

sentenced him to six months of incarceration, execution suspended after ten days, and eighteen months of

probation. This appeal followed.

I

The defendant first claims that his sixth amendment

right to confrontation was violated when the court

allowed Costella to testify that Steven Lemanski told

him that the defendant had consumed two drinks on

the night that he was arrested.2 We disagree.

The defendant claims that Costella’s testimony

regarding Steven Lemanski’s statement constituted testimonial hearsay, the admission of which violated his

constitutional right to confrontation and deprived him

of a fair trial. The defendant did not object to Costella’s

testimony regarding Steven Lemanski’s statement at

trial. Because the defendant’s claim is unpreserved, we

review it 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),3 as the

defendant requests in his appellate brief. Even if we

assume, arguendo, that Costella’s testimony regarding

Steven Lemanski’s statement was inadmissible testimonial hearsay that violated the defendant’s right to confrontation, we conclude that his claim fails under the

fourth prong of Golding because any alleged violation

was harmless.

‘‘Whether a constitutional violation is harmless in a

particular case depends upon the totality of the evidence presented at trial. . . . If the evidence may have

had a tendency to influence the judgment of the jury,

it cannot be considered harmless. . . . Whether such

error is harmless in a particular case depends upon

a number of factors, such as the importance of the

[evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence]

. . . and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine

the impact of the evidence on the trier of fact and the

result of the trial. . . . The state bears the burden of

proving that the error is harmless beyond a reasonable

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

Smith, 156 Conn. App. 537, 561–62, 113 A.3d 103, cert.

denied, 317 Conn. 910, 115 A.3d 1106 (2015).
Here, the state’s case against the defendant was

strong. Costella testified that, when he initially

approached the defendant’s vehicle, he noted a strong

and distinct odor of alcohol emanating from the defendant, the defendant’s eyes were glassy and his speech

was slurred. The defendant had difficulty recounting

where he was driving from and locating the documents

that Costella requested, even though his wallet was in

plain sight on the passenger seat. The defendant also

failed all three of the field sobriety tests administered

by Costella. The state presented expert testimony that,

when an individual fails those three field sobriety tests,

the likelihood of the impairment of that individual is

between 91 percent and 95 percent. The video recording

from the dashboard camera of Costella’s cruiser was

admitted into evidence, so the jury was able to observe

the defendant when Costella stopped him, when he

exited his vehicle and while he performed the field

sobriety tests. Furthermore, Costella testified only that

Steven Lemanski told him that the defendant had two

drinks. He did not say that the defendant was intoxicated, what he drank, or when he consumed such

drinks. Consequently, Steven Lemanski’s statement was

less probative than the evidence the jury heard and

saw about the defendant’s appearance, condition and

conduct at the time his vehicle was pulled over by

Costella. Because there was ample other evidence on

which the jury could have based its guilty verdict, Steven Lemanski’s statement to Costella, at most, was

cumulative and was unlikely to have influenced the

jury’s verdict. We thus conclude that the admission of

Costella’s testimony regarding Steven Lemanski’s statement that the defendant had consumed two drinks on

the night of his arrest was harmless beyond a reasonable

doubt. The defendant’s claim thus fails under the fourth

prong of Golding.

II

The defendant also claims that the court improperly

instructed the jury regarding his alleged refusal to submit to a breath test. The defendant’s challenge to the

court’s instruction to the jury regarding his alleged

refusal to submit to a breath test is twofold. First, he

argues that the court improperly instructed the jury that

it could ‘‘ ‘make any reasonable inference that follows’ ’’

from his refusal to take a breath test. Second, he contends that the court erred in instructing the jury on

consciousness of guilt based on his alleged refusal to

submit to a breath test. We are not persuaded.

On February 1, 2018, the court e-mailed counsel a

copy of the instructions that it intended to give to the

jury. On February 14, 2018, the court held a preliminary

charge conference on the record, during which it indicated its intention to instruct the jury on consciousness

of guilt. The court held a final charge conference, also

on the record, the following day. Both parties expressly
indicated that they were satisfied with the court’s

instructions; neither sought any changes, nor voiced

any objection.

Later that same day, the court instructed the jury. The

court explained, inter alia: ‘‘You may draw reasonable

inferences from the facts you find established in the

case, the inferences that you draw, however, must not

be from a guess upon the evidence, but they must be

from a fact or facts which the evidence has established.

In drawing inferences from the established facts, you

should use your reason and common sense. The inferences that you draw must be logical and reasonable

and not the result of speculation or conjecture.’’

As to consciousness of guilt, the court instructed the

jury as follows: ‘‘This is a limiting instruction. In any

criminal trial, it is permissible for the state to show

that conduct or statements made by a defendant after

the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt. For example, acts

or statements made in an attempt to avoid detection

of a crime or responsibility for a crime or [were] influence[d] by the commission of the criminal act. Such

acts or statements do not, however, raise a presumption

of guilt. If you find the evidence proved and also find

that the acts or his statements were influenced by the

criminal act and not by any other reason, you may, but

are not required to infer from this evidence that the

defendant was acting from a guilty conscience. The

state claims that the defendant was acting from a

guilty conscience.

‘‘The state claims that the following conduct is evidence of consciousness of guilt . . . the defendant’s

refusal to submit to the Breathalyzer test while at the

police station. It is up to you as judges of the facts to

decide whether the defendant’s acts or statements, if

proved, reflect the consciousness of guilt and to consider such in your deliberations and conformity with

these instructions.’’

The court instructed the jury in detail on the elements

of operating a motor vehicle while under the influence

of intoxicating liquor and then summarized that ‘‘the

state must prove beyond a reasonable doubt that [1]

the defendant was operating a motor vehicle at the time

and place alleged, and [2] he was under the influence

of intoxicating liquor.’’ The court also explained: ‘‘Evidence of the defendant’s refusal to submit to a breath

test has been introduced. If you find that the defendant

did refuse to submit to such a test, you may make any

reasonable inference that follows from that fact.’’ After

instructing the jury, the court asked counsel if they had

any exceptions or issues with the final charge, and both

expressly confirmed that they did not.

Because the defendant did not challenge the court’s
instructions at trial, he seeks relief for portions of his

claim under Golding on the ground that a constitutional

violation deprived him of a fair trial. See footnote 3 of

this opinion. For other portions of his claim, he seeks

relief under the plain error doctrine. ‘‘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. . . . That is, it

is a doctrine that this court invokes in order to rectify

a trial court ruling that, although either not properly

preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment,

for reasons of policy. . . . [Thus, an appellant] cannot

prevail under [the plain error doctrine] . . . unless he

[or she] demonstrates that the claimed error is both so

clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . Furthermore, even if the error is so apparent and review is

afforded, the defendant cannot prevail on the basis of

an error that lacks constitutional dimension unless he

[or she] demonstrates that it likely affected the result of

the trial.’’ (Citations omitted; internal quotation marks

omitted.) State v. Harris, 198 Conn. App. 530, 540, 233

A.3d 1197 (2020). With these principles in mind, we

address the defendant’s specific instructional claims

in turn.

A

The defendant first claims that the trial court erred in

instructing the jury that it could ‘‘make any reasonable

inference that follows’’ from his alleged refusal to take

a breath test. As to this instruction, the defendant claims

that (1) the court committed plain error in so instructing

the jury because it was ‘‘contrary to [§ 14-227a (e)]

because it failed to explain precisely what the jury may

infer and what it may not infer from such refusal,’’ and

(2) the court’s instruction diluted the state’s burden to

prove every element of its case beyond a reasonable

doubt and, thus, violated his constitutional right to due

process because it ‘‘allowed the jury to infer solely from

the refusal evidence that the defendant was under the

influence.’’ We are not persuaded.

1

The defendant claims that the trial court’s instruction

that the jury could draw any inference from the defendant’s alleged refusal to submit to a breath test was plain

error because it was inconsistent with the language of

§ 14-227a (e), which provides in relevant part: ‘‘In any

criminal prosecution for a violation of subsection (a)

of this section, evidence that the defendant refused to

submit to a blood, breath or urine test requested in

accordance with section 14-227b shall be admissible

. . . . If a case involving a violation of subsection (a)

of this section is tried to a jury, the court shall instruct

the jury as to any inference that may or may not be
drawn from the defendant’s refusal to submit to a

blood, breath or urine test.’’ (Emphasis added.) The

defendant argues that the ‘‘plain meaning [of the statute]

is to direct trial courts to explain precisely what the

jury may or may not infer. The court must make clear

that the jury may infer only that the defendant had a

guilty conscience, not that he is in fact guilty based

solely on the refusal.’’

This court addressed this issue in State v. Gordon,

84 Conn. App. 519, 854 A.2d 74, cert. denied, 271 Conn.

941, 861 A.2d 516 (2004). In Gordon, the trial court

instructed the jury, inter alia, as follows: ‘‘Evidence of

the defendant’s refusal to submit to a test, to a breath

test, has been introduced. If you find that the defendant

did refuse to submit to such a test, you may make any

reasonable inference that follows from that fact.’’ Id.,

530. The defendant argued that ‘‘the instruction permitted the jury to draw the conclusion that he refused to

submit to the test and to consider that fact alone when

determining guilt’’ and ‘‘failed to impress on the jury

the requirement that even when making permissible

inferences, to find the defendant guilty, it must have

found that the state proved guilt beyond a reasonable

doubt.’’ Id. In rejecting the defendant’s claim, this court

explained: ‘‘We have held that [General Statutes (Rev.

to 1999)] § 14-227a (f), now (e), permits the jury to draw

reasonable inferences regarding a defendant’s refusal

to submit to a Breathalyzer test. See State v. McCarthy,

63 Conn. App. 433, 437, 775 A.2d 1013, cert. denied, 258

Conn. 904, 782 A.2d 139 (2001). In McCarthy, we also

recognized that as long as the court in its instruction

properly identified as permissible the inference the jury

could draw and clearly instructed as to the state’s ultimate burden of proof, it was unimportant that the

court’s language in the instruction did not mirror the

statutory language. Here, the court instructed the jury

that you may make any reasonable inference, even

though the statutory language states that the court shall

instruct the jury as to any inference that may or may

not be drawn . . . . We conclude that it was not possible for the jury to be misled into believing the presumption was mandatory from the language used by the

court.’’ (Citation omitted; emphasis in original; internal

quotation marks omitted.) State v. Gordon, supra, 531.

As this court held in Gordon, and, earlier in McCarthy, we conclude that the court’s instruction to the

jury that it could ‘‘make any reasonable inference that

follows’’ from the defendant’s alleged refusal to submit

to a breath test substantially complied with § 14-227a

(e), and, when read in the context of the entirety of

the court’s instructions, which explained the elements

that the state was required to prove beyond a reasonable

doubt, did not mislead the jury. We thus conclude that

the court did not err in so instructing the jury or that

such an alleged error ‘‘was of such monumental proportion that it threatened to erode our system of justice
. . . or that it resulted in harm so grievous that fundamental fairness requires a new trial.’’ (Internal quotation

marks omitted.) State v. Juan V., 191 Conn. App. 553,

574, 215 A.3d 1232, cert. denied, 333 Conn. 925, 217

A.3d 993 (2019).4 Accordingly, the defendant’s claim of

plain error is unavailing.

2

The defendant also claims that the court’s instruction

permitting the jury to ‘‘make any reference that follows’’

from his alleged refusal to submit to a breath test diluted

the state’s burden of proof and, consequently, violated

his right to due process. The state contends that the

defendant implicitly waived this claim at trial. We agree

with the state.

In State v. Kitchens, 299 Conn. 447, 10 A.3d 942

(2011), our Supreme Court held: ‘‘[W]hen the trial court

provides counsel with a copy of the proposed jury

instructions, allows a meaningful opportunity for their

review, solicits comments from counsel regarding

changes or modifications and counsel affirmatively

accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential

flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct

appeal. Such a determination by the reviewing court

must be based on a close examination of the record and

the particular facts and circumstances of each case.’’

Id., 482–83.

In this case, the parties were given the court’s proposed instructions on February 1, 2018, thirteen days

prior to the preliminary charge conference on February

14, 2018. During that conference, which was held on

the record, the court reviewed the instructions with

counsel, proceeding page by page, and soliciting from

counsel any questions or concerns about them. Both

counsel voiced their satisfaction with each portion of

the instructions as the court and counsel reviewed them

together. The next day, the court provided counsel with

a final copy of its intended instructions to the jury and

held a final charge conference on the record. After the

court noted on the record the minor edits that were

made to the instructions, it asked if either counsel had

any questions regarding those changes; both counsel

indicated that they did not. The court then asked, once

again, whether either counsel had ‘‘any additional

request to charge any issues, changes, objections,

exceptions, corrections to the final jury instructions.’’

Both counsel indicated that they did not. After

instructing the jury, the court asked counsel if they had

any exceptions or issues with the final charge, and both

confirmed that they did not.

Because the court provided the defendant with a copy

of its instructions thirteen days before the preliminary

charge conference, he had ample time to review them.
The court reviewed the instructions with counsel on

the record, soliciting comments and proposed modifications, and both counsel affirmatively, and repeatedly,

expressed their satisfaction with the court’s instructions. We therefore conclude that the defendant implicitly waived his claim that the court’s instruction diluted

the state’s burden of proof and violated his constitutional right to due process.5 His claim therefore fails

under Golding.

B

The defendant also contends that the court committed plain error when it instructed the jury that his

alleged refusal to submit to a breath test could be construed as consciousness of guilt because such an

instruction was not factually supported by the evidence

in view of the fact that he agreed to a blood test. We

disagree.

Faced with the same issue in State v. Barlow, 30

Conn. App. 36, 618 A.2d 579 (1993), this court reasoned:

‘‘[W]e cannot conclude that the trial court abused its

discretion by allowing the jury to consider testimony

on the issue of whether the defendant refused to take

the breath test. As [General Statutes (Rev. to 1991)]

§ 14-227a (f) [now (e)] makes abundantly clear, evidence that the defendant refused to submit to a . . .

breath . . . test . . . shall be admissible provided that

the requirements of subsection (b) of [General Statutes

§ 14-227b] have been satisfied. Whether the defendant

refused to take the breath test was an issue of fact for

the jury. . . . Accordingly, the trial court did not abuse

its discretion by submitting this factual issue to the jury.

‘‘Furthermore, the trial court prudently instructed the

jury on interpreting the evidence surrounding the

attempted breath test. [General Statutes (Rev. to 1991)]

§ 14-227a (f) [now (e)] provides that [i]f a case involving

a violation of subsection (a) of this section is tried to

a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s

refusal to submit to a . . . breath . . . test. In

instructing the jury, the trial court explained that the

jury was free to draw any reasonable inferences in the

event that it found refusal. The court proceeded to

caution the jury that evidence of refusal by itself cannot

support a guilty verdict. In short, on these facts, we are

unable to discern an abuse of discretion by the trial

court.’’ (Citation omitted; emphasis in original; footnote

omitted; internal quotation marks omitted.) Id., 43–44.

As in Barlow, we cannot conclude that the trial court

erred in instructing the jury on consciousness of guilt.

Costella testified that the defendant agreed to submit to

a breath test, then changed his mind, vacillating several

times before he requested a blood test. That evidence

was admitted without objection from the defendant

and, accordingly, the jury was entitled to consider it.
The court’s instruction advising the jury of its obligation

to determine whether the defendant refused the breath

test, therefore, was not only proper, but it was necessary. See State v. Rodriguez, 192 Conn. App. 115, 123,

217 A.3d 21 (2019). Accordingly, we conclude that the

court did not err in so instructing the jury. We further

conclude that the instructions pertaining to the consciousness of guilt evidence do not rise to the level of

egregiousness and harm that would warrant reversal

under the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

1 See General Statutes § 14-227b (c).

2 Neither the state nor the defendant called Steven Lemanski as a witness

at trial.

3 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. In the absence of any one of these

conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote

omitted.) State v. Golding, supra, 213 Conn. 239–40.

4 We note that the instruction given by the trial court in this case and in

Gordon is identical to that prescribed by the Judicial Branch’s model criminal

jury instructions. See Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720, 763,

212 A.3d 646 (2019) (‘‘language used in model jury instructions, although

instructive in considering the adequacy of a jury instruction . . . is not

binding on this court (citation omitted)).

5 Although we do not reach the substance of this claim, we note that it

too was rejected in State v. Gordon, supra, 84 Conn. App. 519. The court

reasoned: ‘‘When determining whether a charge diluted the state’s burden

of proof, we do not look at the charge in isolation, but examine it within

the context of the entire charge. . . . The court clearly and repeatedly

instructed the jury that the state had the burden of proving each and every

element beyond a reasonable doubt. The language directly following the

challenged instruction specifically reminded the jury that to find the defendant guilty, it needed to find that the state proved each element beyond a

reasonable doubt. In light of the instructions as a whole, we conclude that

it was not reasonably possible that the jury was misled as to the state’s

burden of proof.’’ (Citation omitted.) Id., 532–33. The court concluded: ‘‘We

disagree with the defendant’s contention that the challenged language, coupled with the court’s instruction on the permissible inference the jury could

draw under [General Statutes (Rev. to 1999)] § 14-227a (f), now (e), diluted

the state’s burden to prove the defendant’s guilt on each element of the

offense beyond a reasonable doubt.’’ Id., 532.