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STATE OF CONNECTICUT v. PHILIP FRIEND

(AC 36097)

DiPentima, C. J., and Alvord and Pellegrino, Js.

Argued March 4—officially released August 18, 2015

(Appeal from Superior Court, judicial district of New

Haven, B. Fischer, J.)

Paul F. Enzinna, pro hac vice, with whom was Dylan

P. Kletter, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian K. Sibley, Sr., and

Maxine Wilensky, senior assistant state’s attorneys, for

the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Philip Friend,

appeals from the judgment of conviction,rendered after

a jury trial, of twelve counts of larceny of varying

degrees: three counts of larceny in the first degree in

violation of General Statutes (Rev. to 2007) § 53a-122

(a) (2), two counts of larceny in the second degree in

violation of General Statutes (Rev. to 2007) § 53a-123

(a) (2), and seven counts of larceny in the third degree

in violation of General Statutes (Rev. to 2007) § 53a124 (a) (2).1 These charges arose out of his relationship

with Standard Beef Company (SBC) between August,

2007 and February, 2008. On appeal, the defendant

claims that: (1) the evidence was insufficient to support

his conviction of larceny on all counts; (2) he was

deprived of a fair trial by the prosecutor’s statements

made during the state’s closing argument; and (3) he

was denied his constitutional right to a speedy trial

when the state ‘‘failed to bring him to trial until four

and a half years after his arrest . . . .’’ We affirm the

judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. On August 2, 2007, the defendant signed an

agreement to become a consultant to SBC in New

Haven. SBC was owned solely by Henry Bawarsky and

was in the business of purchasing meat products from

wholesale suppliers and then reselling them to its customers. Under the terms of the agreement, the ‘‘specific

services’’ that were to be provided by the defendant to

SBC would have to be mutually agreed on by the parties.

The defendant would provide his services to SBC as

an independent contractor and would be ineligible to

receive ‘‘any additional compensation or employee benefits that would otherwise accrue to him if he were an

employee . . . .’’ The agreement further provided that

the defendant would be reimbursed for his documented

out-of-pocket expenses. In consideration for his services, the defendant would receive 25 percent of SBC’s

net profits estimated weekly.2

In addition, the defendant

was to ‘‘receive an option to purchase, together with

Richard Greenfield, all of the outstanding shares’’ of

SBC to be exercised by December 31, 2007.3 The

agreement specifically provided that ‘‘[a]ll moneys to

be paid by [SBC] to third parties’’ had to be approved

in writing by Bawarsky and either the defendant or

Greenfield, which could be evidenced by ‘‘a check

signed by both such parties.’’4 Finally, the agreement

provided that its terms ‘‘may not be altered, modified

or extended except in writing signed by both parties.’’

Prior to the defendant’s becoming a consultant to

SBC, the company employed approximately twenty

people. It was managed primarily by Bawarsky, senior

vice president William Dober, and senior accountant/

comptroller Fred Auger. Paper documents were created
to keep track of the inventory and finances.5 The blank

company checks were stored in a safe. Only employees

in a position of trust had the combination to access the

safe.6 Prior to any checks being sent out, Auger would

match the printed checks with the corresponding

invoices and submit them to Dober for verification and

signature. Likewise, Dober, who had a corporate credit

card, provided Auger with itemized receipts to explain

and justify the charges on the account. Although Auger

could issue checks, he was not authorized to sign them.

Overall, Bawarsky, Dober, and Auger actively were

engaged in the running of SBC and remained informed

of its day-to-day operations and financial situation.

In August, 2007, SBC was in a poorfinancial situation;

it did not have enough funds to pay its suppliers on time

and frequently risked overdrafting its bank account.

Nevertheless, SBC remained an attractive acquisition

target because it owned approximately a 15 percent

stake in New Haven Food Terminal—a real estate asset

worth ‘‘millions of dollars.’’

Once the defendant had assumed his role as a consultant to SBC in August, 2007, he immediately began

implementing changes in the way the company had been

operating. The old computer software was enhanced

by a modern one, providing more timely and accurate

information to the sales personnel.7 The data from the

new system, which became fully operational in October,

2007, fed directly into Greenfield’s office in New York,

so he could remotely monitor and access SBC accounts.

In addition to the new software, Greenfield provided

SBC with barcode scanners and label printers to

improve efficiency. Greenfield also provided SBC with

an $800,000 line of guaranteed trade credit to help ease

the company’s financial burden.8 As a result of these

changes, SBC’s finances significantly improved; the frequency and amounts of the bank account overdrafts

diminished, profit margins improved, and the annual

loss of $400,000 began to decrease.

At the time of these changes, Bawarsky was seen with

the defendant and introduced him to the company’s

personnel as someone who would help turn the business around and become the eventual owner of SBC.

On August 6, 2007, Bawarsky, who was seventy-nine

years old, suffered a broken leg, was hospitalized for

more than a month and was unable to participate in

the running of SBC. Even after he was able to return

to work,Bawarsky would come in only for several hours

three or four times a week.

Following Bawarsky’s injury, the defendant

increased his role in the day-to-day operations of SBC.

On September 24, 2007, he fired Auger and assumed the

company’s accountant/comptroller duties, becoming an

employee in addition to his consultant position. Having

assumed Auger’s position, the defendant gained control

over the SBC checkbook, and Dober no longer had
control over some checks that were being sent out.

On November 27, 2007, the parties signed an amendment to the original agreement extending the option to

purchase SBC to February 28, 2008. Despite the extension, the sale of SBC did not occur. In February, 2008,

David Bawarsky, Henry Bawarsky’s son, took control

of the company and forced the defendant out, removing

him from the property with the help of the New

Haven police.

A criminal investigation ensued, and the defendant

was charged with thirteen counts of larceny.9 The jury

found the defendant guilty on twelve counts, and the

court sentenced him to twelve years incarceration, execution suspended after six years, with five years probation. This appeal followed. Additional facts will be set

forth as needed.

I

SUFFICIENCY OF EVIDENCE

We begin with the defendant’s challenge to the sufficiency of the evidence to support his larceny conviction

on twelve counts. ‘‘A defendant who asserts an insufficiency of the evidence claim bears an arduous burden.’’

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

146 Conn. App. 99, 110, 75 A.3d 798, cert. denied, 310

Conn. 948, 80 A.3d 906 (2013). ‘‘In reviewing the sufficiency of the evidence to support a criminal conviction

we apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the [jury] reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is

permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whetherthe cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt. . . .

‘‘Moreover, it does not diminish the probative force

of the evidence that it consists, in whole or in part, of

evidence that is circumstantial rather than direct. . . .

It is not one fact . . . but the cumulative impact of

a multitude of facts which establishes guilt in a case

involving substantial circumstantial evidence. . . . In

evaluating evidence, the [jury] is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable

and logical. . . .

‘‘[In addition], [a]s we have often noted, proof beyond

a reasonable doubt does not mean proof beyond all

possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of

innocence posed by the defendant that, had it been

found credible by the [jury], would have resulted in an

acquittal. . . . On appeal, we do not ask whether there

is a reasonable view of the evidence that would support

a reasonable hypothesis of innocence. We ask, instead,

whether there is a reasonable view of the evidence

that supports the [jury’s] verdict of guilty.’’ (Internal

quotation marks omitted.) State v. Papandrea, 302

Conn. 340, 348–49, 26 A.3d 75 (2011).

As to the law governing the crime of larceny in Connecticut, ‘‘[a] person commits larceny when, with intent

to deprive another of property or to appropriate the

same to himself or a third person, he wrongfully takes,

obtains or withholds such property from an owner.’’10

General Statutes § 53a-119. Our ‘‘courts have interpreted the essential elements of larceny as (1)the wrongful

taking or carrying away of the personal property of

another; (2) the existence of a felonious intent in the

taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.’’ (Internal quotation marks omitted.) State v. Flowers, 69 Conn.

App. 57, 69, 797 A.2d 1122, cert. denied, 260 Conn. 929,

798A.2d 972 (2002). ‘‘Because larceny is a specific intent

crime, the state must show that the defendant acted

with the subjective desire or knowledge that his actions

constituted stealing. . . . One who takes property in

good faith, under fair color of claim or title, honestly

believing that . . . he has a right to take it, is not guilty

of larceny even though he is mistaken in such belief,

since in such case the felonious intent is lacking. . . .

The general rule applies . . . to one who takes it with

the honest belief that he has the right to do so under

a contract . . . .’’ (Citation omitted; internal quotation

marks omitted.) State v. Papandrea, supra, 302 Conn.

350. With these principles in mind, construing the evidence in the light most favorable to sustaining the verdict, we determine that the jury reasonably could have

concluded that the cumulative force of the evidence

established the defendant’s guilt beyond a reasonable

doubt as to each conviction.

A

The defendant first claims that there was insufficient

evidence to support his conviction of three counts of

larceny in the first degree in violation of § 53a-122 (a)

(2).11 We address each in turn.

1

Count One–Webster Bank Debt
The following additional facts are relevant to this

claim. Priorto becoming a consultant to SBC, the defendant was the principal of Ridgefield Farms, LLC (Ridgefield Farms), a wholesale beef seller that had been a

supplier to SBC. Ridgefield Farms had an outstanding

debt to Webster Bank in the amount of $88,158.66. The

defendant was personally responsible for settling the

debt by November 16, 2007.12 On November 9, 14, and

16, 2007, the defendant handwrote three SBC checks

payable to ‘‘Webster’’ adding up to the amount of the

outstanding debt.13 Checks dated November 9 and

November 16 were signed by the defendant only. The

November 14 check had two signatures; the defendant’s

and a signature resembling Dober’s. Dober testified,

however, that the second signature was not his.

At trial, the defendant argued that SBC owed Ridgefield Farms ‘‘[a] significant amount of money’’ for past

deliveries of beef. To support his argument, the defendant introduced two internal SBC documents. The first

document reflected that, as of May, 2007, SBC owed

Ridgefield Farms $26,830.32. Dober testified that he

recalled the debt being at ‘‘$27,000 and change’’ in the

summer of 2007. The second document reflected an

outstanding debt as $50,339.49 in July, 2007. In addition,

the defendant presented the testimony of Attorney

David Pite, who represented the defendant in his negotiations with Webster Bank regarding the settlement of

the outstanding loan. Pite testified that in the fall of

2007, SBC owed Ridgefield Farms ‘‘in excess of

$100,000.’’ Pite explained that he knew the extent of

the debt because, at that time, he also was representing

SBC in two legal matters concerning the company’s

outstanding debts and, therefore, he ‘‘had to know who

was owed what.’’

On appeal, the defendant claims that the state

‘‘offered no evidence that [SBC] did not authorize these

checks, but instead asked the jury to infer the absence

of consent because [SBC] had no connection with Webster Bank, and [the defendant] used the [SBC] money

to pay off a debt he personally guaranteed.’’ (Internal

quotation marks omitted.) Such inference, the defendant contends, ‘‘is not supported by the evidence.’’ Additionally, the defendant argues that the state failed to

offer sufficient evidence to show that he had the intent

to deprive SBC of its property. Specifically, the defendant argues that he acted under a good faith belief that

SBC owed a substantial amount of money to Ridgefield

Farms and that he, as the owner of Ridgefield Farms,

was entitled to satisfy his personal debt to Webster

Bank using SBC funds. We are not persuaded.

We first note that ‘‘direct evidence of the accused’s

state of mind is rarely available. . . . Therefore, intent

is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the

rational inferences drawn therefrom.’’ (Internal quota-
tion marks omitted.) State v. Hedge, 297 Conn. 621, 657,

1 A.3d 1051 (2010).

We further note that in State v. Papandrea, supra,

302 Conn. 340, our Supreme Court has considered the

question of whetherthe defendant’s intent to steal could

reasonably have been inferred under a set of circumstances similar to this case. The similarities between

the cases warrant a brief discussion of the Papandrea decision.

The defendant in Papandrea worked as an accountant and chief financial officer for Homecare Management Strategies, Inc. (Homecare), a provider of

financial services to home health care agencies. Id.,

342. At the same time, the defendant was a majority

shareholder of White Oak Systems, LLC (White Oak),

a software company that provided its services to

Homecare. Id.

In a period from February, 2004 to February, 2005,

the defendant issued a number of Homecare company

checks payable to various art dealers. Id., 344. Once

these transactions were revealed to the Homecare

owner, the defendant’s employment was terminated,

and he was subsequently charged with stealing corporate funds to purchase artwork for his personal use.

Id., 344–46.

At trial, the defendant argued that he was entitled to

use the funds because ‘‘Homecare owed him money as

White Oak’s principal shareholder at the time he had

issued the checks.’’ (Internal quotation marks omitted.)

Id., 345. Despite this defense theory, the jury convicted

the defendant of nine counts of larceny in the first

degree, and this court affirmed the judgment on direct

appeal. Id., 345–46. Thereafter, our Supreme Court

granted the defendant’s petition for certification limited

to the issue of the sufficiency of evidence in the case.

Id., 342.

Affirming this court’s decision, our Supreme Court

concluded that the state had presented sufficient evidence to sustain the defendant’s conviction. Specifically, the court held that the jury reasonably could have

found that the defendant acted with intent to steal

because (1) by virtue of his professional education and

work experience he ‘‘knew that a debt to White Oak

was different from a debt to him personally’’; id., 351;(2)

he transferred the ‘‘funds directly into his own pocket,

rather than, for instance, transferring them to White

Oak or sharing them with’’ another principal at White

Oak; id., 353; (3) the relevant ‘‘entries in the Homecare

check register contain nothing to indicate that the transactions involved artwork, that the payees were art dealers, or that the ultimate beneficiary of each transaction

was the defendant or, for that matter, White Oak’’; id.,

356; (4) the defendant did not begin ‘‘making illicit withdrawals’’ until he had become ‘‘the sole Homecare
employee dealing on a daily basis with checks and bookkeeping’’ and the provision of the financial reports to

management; id., 355; and (5) Homecare had no prior

history of issuing company checks ‘‘to an individual for

personal use . . . .’’ Id., 354.

Likewise in the present case, the jury heard sufficient

evidence reasonably to conclude that the defendant

acted with a specific intent to deprive SBC of property.

At trial, the jury heard evidence that the defendant’s

initial role at SBC was that of ‘‘an advisor and consultant.’’ In addition, having terminated Auger in September, 2007, the defendant became the company’s

accountant/comptroller, assuming oversight and control of SBC’s finances. On the basis of this evidence,

the jury reasonably could have concluded that the

defendant, as an executive officer of the company, must

have known that SBC’s debt to Ridgefield Farms was

distinct from a debt to him personally. Having reached

that conclusion, the jury then reasonably could have

inferred that the defendant was not acting under the

good faith belief that SBC owed the funds to him personally.

Additionally, the jury could have concluded that, at

the time he wrote out the checks, the defendant was

not acting in good faith because he did not follow the

required SBC procedure of having two signatures on

the company’s checks, he handwrote the checks instead

of issuing them on the company’s newly installed computer software, he simply named Webster Bank as the

payee without any explanation of the underlying nature

of the transaction, and he transferred funds directly to

Webster Bank instead of paying Ridgefield Farms first

and then paying off the debt.14 Moreover, the jury reasonably could have concluded that SBC’s debt to Ridgefield Farms was not large enough to explain the

payment of $88,158.66. While it is true that Pite testified

that SBC’s debt to Ridgefield Farms was in excess of

$100,000, the jury also heard Dober testify that he

remembered the debt being approximately $27,000. It

is axiomatic that the jury, as the final arbiter of credibility of any witness, was free to disbelieve Pite and instead

credit Dober’s recollection of the amount of the debt

and, thus, conclude that SBC did not owe Ridgefield

Farms the amount claimed by the defendant.15 See State

v. Robinson, 125 Conn. App. 484, 489, 8 A.3d 1120 (2010)

(‘‘[o]n appeal, we cannot revisit the jury’s decision to

believe the witnesses’’), cert. denied, 300 Conn. 911, 12

A.3d 1006 (2011). Moreover, because no evidence at

trial established that SBC owed Ridgefield Farms any

funds at the time the payments had been made, the jury

was free to conclude that SBC did not owe any money

to Ridgefield Farms.

Likewise, the jury reasonably could have concluded

that the defendant had not been authorized to issue

checks to Webster Bank by SBC or its owner Bawarsky,
and that he was aware of that. The consulting

agreement, which the defendant personally had signed,

expressly provided that all funds paid to third parties

required a prior written authorization by Bawarsky and

eitherthe defendant or Greenfield. In addition, the company’s check signing procedure was amended in

August, 2007, explicitly to require two signatures on all

SBC checks. The defendant had signed that document

too, acknowledging his familiarity with the new policy.

Furthermore, the jury reasonably could have concluded that the checks themselves indicated lack of

consent by SBC; two of the three checks bore only the

defendant’s signature, and the jury could have credited

Dober’s testimony that the third check, while bearing

a second signature similar to his, in fact had not been

signed by him. Significantly, the defendant did not issue

the checks until after he had assumed control of the

company’s checkbook having terminated Auger.

Finally, the jury reasonably could have concluded that

the defendant lacked authorization and was trying to

avoid detection by handwriting the checks used in the

old computer system instead of issuing checks on the

new system, which could be accessed and monitored

remotely by Greenfield—the man who personally had

extended and guaranteed the $800,000 trade credit to

SBC.16

2

Count Three–Berger Legal, LLC

The following additional facts are relevant to this

claim. During the negotiations of the consulting

agreement and its amendment,the defendant was represented by Attorney Jennifer Rose of Berger Legal, LLC

(Berger Legal). In turn, SBC was represented by its

own counsel, Attorney Geoffrey Hecht. Subsequently,

Berger Legal sent the defendant three separate invoices

forits services on August 31, 2007, for $8170.22; September 30, 2007, for $809.10; and October 31, 2007, for

$1193.50. The defendant paid the invoices in full with

three separate SBC checks issued using the old computer system. Each check appeared to have been signed

by the defendant and Dober. At trial, however, Dober

testified that the signature on the check for $1193.50

was not his and that he was not able to confirm that

the signature on the check for $8170.22 was his.17

On appeal, the defendant claims that the state

‘‘offered no evidence from which the jury could infer

that [SBC’s] payment of [Berger Legal’s] fees was unauthorized.’’ We disagree.

In his brief, the defendant concedes that there was

evidence at trial establishing Berger Legal as a third

party. Under the terms of the consulting agreement, all

SBC payments to third parties required written approval

of both Bawarsky and the defendant or Greenfield. The

checks to Berger Legal did not have Bawarsky’s signa-
ture on them. Thus, the jury reasonably could have

inferred that the lack of Bawarsky’s signature indicated

that such payments had not been authorized. In addition, the jury could have found that the defendant had

chosen to issue the checks on the old system to avoid

detection by Greenfield, who testified that he did not

expect the defendant to pay any personal expenses with

SBC funds. As in the first count, the defendant did not

issue these SBC checks until after he had assumed the

control over the SBC checkbook. Furthermore, the jury

also could have inferred that the payments to Berger

Legal had not been authorized on the basis of Dober’s

inability to confirm the authenticity of his signature on

two of the checks. Finally, the jury, relying on its common sense, could reasonably have inferred that an

agreement as to legal fees necessarily would have been

reflected in the consulting agreement. See State v. Lavigne, 121 Conn. App. 190, 196, 995 A.2d 94 (2010)(‘‘[triers

of fact] are not required to leave common sense at the

courtroom door’’ [internal quotation marks omitted]),

aff’d, 307 Conn. 592, 57 A.3d 332 (2012). This inference is

supported by the trial testimony regarding Bawarsky’s

involvement in the drafting of the agreement, the specific provision concerning the third party payments,

and SBC’s acute shortage of available funds.

3

Count Four–Peaceable Sales, LLC

The following additional facts are relevant to this

claim. On April 7, 2006, the defendant and his wife

registered a limited liability company–Peaceable Sales,

LLC (Peaceable Sales)–with the State of Connecticut.

During his tenure at SBC, the defendant issued ten SBC

checks to Peaceable Sales totaling $76,159.95. Although

most of the checks were accompanied by a Peaceable

Sales invoice, three checks had no corresponding

invoices. Five of the checks were issued on the old

computer system, and three were handwritten. Four of

the checks had been signed by the defendant alone,

and five more had a second signature that resembled

Dober’s. Dober, however, testified that four out of the

five checks that had two signatures had not been signed

by him.18 Similarly, Dober’s sister, Marcy Gollinger, also

was unable to identify her brother’s signature on all

five checks.

At trial, Dober testified that he had no recollection

of SBC doing business with Peaceable Sales, and that

he had never seen an invoice from that company. In

addition, Gollinger testified that she did not remember

writing an SBC check to Peaceable Sales prior to

August, 2007. Likewise, Ilka Cintron testified that she

had not heard of Peaceable Sales prior to the defendant’s arrival at SBC.

To counter the testimony and evidence presented by

the state, the defendant introduced several documents
that, according to him, proved that the checks had been

issued to satisfy SBC’s outstanding debt to Peaceable

Sales for real deliveries of meat products. Specifically,

the defendant presented the jury with a series of

invoices reflecting a purchase of thirty-seven boxes of

tenderloins by SBC from Peaceable Sales that later purportedly were sold to West Conn meat company netting

SBC a profit of $6770.62.

On appeal, the defendant argues that the state ‘‘produced not a shred of evidence to support its theory that

any transaction between [SBC] and Peaceable Sales

was a sham . . . .’’ On the contrary, the defendant

argues, the evidence presented at trial ‘‘showed that

[SBC] bought real beef from Peaceable Sales, which

it later sold for a profit.’’ We are not persuaded by

these arguments.

As we have stated previously, the jury heard testimony that a total of ten SBC checks had been issued

to Peaceable Sales. The first four checks, totaling

$1855.26, were issued in September, 2007, using the old

computer system. The following two checks, totaling

$25,263.05, were issued in October and early November,

2007, using the new computer system. Thereafter, however, in November, 2007, and early January, 2008, the

defendant handwrote two old system checks totaling

$23,250.65. Later in January, 2008, the defendant issued

a check for $10,432.91 using the new computer system

again, followed by another handwritten check for

$15,358.08 used in the old system.

At trial, Gollinger testified that by October, 2007, the

new computer system was fully operational. She further

testified that, once the new system had been installed,

all of the existing accounts were transferred to the new

system and SBC‘‘started payables on [the] new system.’’

The only exceptions, according to Gollinger, were the

invoices and bills issued prior to October, 2007.

On the basis of her testimony, the jury reasonably

could have concluded that this pattern of the alternating

use of the old and the new computer systems well after

the October changeover was an indication that at least

some of the purported transactions between SBC and

Peaceable Sales were fictitious, and that the defendant

used the old system in November, 2007, and January,

2008, in an apparent attempt to hide the true nature

of those payments. The jury could have found further

support for its conclusion in the fact that the November

and January checks issued under the old system had

been handwritten and had only the defendant’s signature. Moreover, the jury could have credited the testimony of Dober and Gollinger, neither of whom were

able to verify the authenticity of Dober’s signature on

the checks at issue, and reasonably have concluded

that the checks had been issued without following the

procedure required by the consulting agreement and

the SBC policy requiring two signatures.
In his brief, the defendant argues that the evidence

at trial ‘‘showed that [SBC] made a profit on the items

it purchased from Peaceable Sales.’’ We note that the

evidence the defendant cites to may explain one transaction, but not all. Furthermore, even if the jury were

to credit every transaction between SBC and Peaceable

Sales that had an accompanying invoice as legitimate,

it, nevertheless, would have been left with two unexplained checks, permitting the jury reasonably to conclude that they were illegitimate because they were

written by hand in January, 2008, and signed by the

defendant alone. We further note that the combined

value of these two checks equals $25,465.72, which

exceeds the $10,000 threshold of § 53a-122 (a) (2).19

The defendant further contends that the state’s arguments at trial, that Peaceable Sales was a ‘‘phony’’ company ‘‘run out of [the defendant’s] house, supposedly by

[his] wife, and that its bills to [SBC] were not legitimate

bills,’’ were not supported by the evidence and could

have caused ‘‘the jury to speculate, or even suspect,

that the company engaged in sham transactions.’’ We

are not persuaded by this argument.

It is well settled that because jurors are ‘‘well

equipped to analyze the evidence,’’ our appellate courts

will not negate a verdict ‘‘on the chance . . . that the

jury convicted on a ground that was not supported

by adequate evidence when there existed alternative

grounds for which the evidence was sufficient.’’ (Internal quotation marks omitted.) State v. Chapman, 229

Conn. 529, 539–40, 643 A.2d 1213 (1994) (en banc).

Having reviewed the record, we conclude that in this

case, as in Chapman, the jurors ‘‘were in a position to

be able to evaluate the testimony presented and to

assess whether the charged theory was supported by

the evidence.’’ Id., 540.

B

The defendant next claims that there was insufficient

evidence to support his conviction of two counts of

larceny in the second degree in violation of § 53a-123

(a) (2).20 We address each in turn.

1

Count Five–Washington Mutual Credit Card

Additional facts pertaining to this count are as follows. During his tenure at SBC, the defendant had a

personal credit card issued by the Washington Mutual

Bank. From September, 2007, through January, 2008,

the defendant made multiple purchases with the card,

which, by the end of December, 2007, amounted to

$7966.24. The credit card statements, introduced by the

state at trial, reflected that, inter alia, the defendant

made purchases at 121 Restaurant in North Salem, New

York ($161.19); Vista Wine & Spirits in South Salem,

New York ($68.80); Bed Bath & Beyond in Danbury
($231.97); Studentcity.com ($1497); Galleria D’Arte in

Ridgefield ($330.94); Circuit City in Danbury ($58.29);

Urban Outfitters in New Haven ($398.64); Ridgefield

Pet, Inc. ($5.29); and Johnston & Murphy’s in Marlton,

New Jersey ($1003.50). The defendant also used the

card to take out a cash advance of $1567.99, and

incurred both a finance/cash advance charge of $47.04

and late fees in the amount of $78, all included in the

total outstanding amount by the end of December, 2007.

On December 17, 2007, the defendant wrote an oldsystem check payable to the order of ‘‘Washington

Mutual’’ in the amount of $5500. The check was handwritten and signed only by the defendant.

On appeal, the defendant argues that, in order to find

him guilty on this count, the jury had to ‘‘make two

separate and necessary’’ inferences: (1) the jury had to

infer that SBC ‘‘did not authorize payment of charges

that were not [SBC’s] business expenses’’; and (2) the

jury had ‘‘to infer, from the descriptions of the charges

contained in the billing statements, that charges paid

with [SBC] funds were, in fact, [the defendant’s] personal expenses,ratherthan [SBC’s] business expenses.’’

Neither of these inferences, according to the defendant,

is supported by the evidence. We disagree.

To support his first argument, the defendant points

to paragraph six of the consulting agreement, which

provides that the ‘‘[c]onsultant shall be reimbursed for

out-of-pocket travel and room, board and entertainment

expenses incurred during the term hereof; provided

[c]onsultant submits documentation verifying said

expenses.’’

Although it is true that the consulting agreement does

not specifically limit the reimbursement to business

expenses only, the jury reasonably could have inferred

that, as a consultant who was hired to bring in new

business and help turn around the company in the midst

of a deep financial crisis, the defendant would be reimbursed for only verified legitimate business expenses.

Furthermore, an additional indication that SBC

intended to reimburse the defendant forlegitimate business expenses is found in paragraph one of the consulting agreement, which provides, inter alia, that the

‘‘[c]onsultant shall serve as advisor and consultant to

[SBC] in connection with [SBC’s] business activities.’’

(Emphasis added.) Thus, the jury reasonably could have

concluded that the defendant was hired to improve

SBC’s business fortunes and that he would have been

reimbursed only for expenses incurred in the pursuit

of that goal.

The defendant next argues that, ‘‘even if the jury

could infer lack of authorization from the fact that a

charge was not for a business expense of [SBC], the

evidence was insufficient to permit the jury to infer

that any charge paid with [the check] was not, in fact, a
business expense of [SBC].’’ Specifically, the defendant

argues that the state ‘‘put on no evidence to show what

was purchased in any credit card transaction, or even

any evidence with regard to what was sold at any of

the merchants involved.’’

The problem with the defendant’s argument is that

it presumes that the jury reasonably could have found

that the expenses were personal only through direct

evidence. His argument, however, ignores the substantial circumstantial evidence before the jury at trial. In

particular, the jury reasonably could have inferred that

the expenses were personal in nature because the

defendant used the old system checks at the time when

the new system was fully operational and all of the new

accounts were to be processed through the new system,

the check had been signed only by the defendant in

clear violation of the SBC check signing policy and the

consulting agreement, he issued the checks after he

had assumed control of the corporate checkbook, and

there were no invoices in SBC’s records explaining the

nature of the charges. That inference in turn would

have then allowed the jury reasonably to conclude that

purchases made at Urban Outfitters, Ridgefield Pet,

Inc., Galleria D Arte, Vista Wine & Spirits, and Studentcity.com, as well as the cash advance, cash advance fee,

late fees, and other purchases were not business

related, despite the fact that no witness had testified

about the nature of the purchases made with the credit

card. See State v. Crafts, 226 Conn. 237, 245, 627 A.2d

877 (1993)(‘‘[t]here is, in fact, no rule of law that forbids

the resting of one inference upon facts whose determination is the result of other inferences’’ [internal quotation marks omitted]).

2

Count Six–American Express Credit Card 000

Additional facts pertaining to this count follow. During the defendant’s tenure at SBC, his wife, Jamie

Friend, and Peaceable Sales held an American Express

credit card account ending in 000. From August 8, 2007,

through August 28, 2007, the defendant made multiple

purchases with the card amounting to $1134.12. The

credit card statement for that period, introduced by the

state at trial, reflected that the defendant had made

purchases at Izumi Japanese Restaurant in Danbury

($99.15); Barcelona in Fairfield ($247.23); Bing’s Car

Service in Hopewell Junction, New York ($165); Koo

Restaurant in Ridgefield ($108.10); Spring House Hotel

on Block Island, Rhode Island ($195.80); Metro-North

($23); and several gasoline purchases made in New York

and Connecticut ($295.84).

By the next statement cycle ending on September 28,

2007, the account had accrued $3605.93 in new purchases, a late payment fee, and a finance charge, bringing the total balance on the account to $4740.05. The
defendant submitted a copy of the monthly statement to

SBC with certain charges having handwritten notations

purportedly explaining their nature. Charges submitted

for payment included ‘‘peripherals’’ at Verizon Wireless

in Brookfield ($116.57); ‘‘computers’’ at Best Buy in

West Hartford ($1262.92); transportation to New York

City and back with Mincpac, Inc., ($296); a company

dinner at Brazis Restaurant in New Haven ($41.88);

several entertainment charges ($366.80); Microsoft

Tech Support ($59); and multiple ‘‘fuel’’ purchases

($436.28).

On September 21, 2007, the defendant issued an SBC

check payable to the order of ‘‘American Express’’ in

the amount of $483.84. The check was issued using

the old computer system and had only the defendant’s

signature. On September 26, 2007, the defendant issued

another SBC check payable to the order of ‘‘American

Express’’ in the amount of $483.84. The check also was

issued on the old system, but it had two signatures;

the defendant’s and a signature resembling Dober’s. On

October 23, 2007, the defendant issued a third SBC

check payable to the order of ‘‘American Express’’ in

the amount of $2675.04. The check was issued on the

new system and also had two signatures. At trial, however, Dober testified that neither of the two signatures

was his.

By the next monthly statement, ending on October 28,

2007, the account had accrued $288.15 in new purchases

and fees, bringing the total outstanding balance to

$1385.48. The new purchases included a finance charge

($57.19); a purchase at Temple Grill in New Haven

($103.50); Vanger Garage in New York, New York ($26);

and several fuel purchases ($101.46).

On November 19, 2007, the defendant issued an SBC

check payable to the order of ‘‘American Express’’ in

the amount of $1385.48. The check was issued on the

new system and signed only by the defendant.

By the monthly statement ending on November 28,

2007, the account had accrued $2128.96 in new purchases and fees. The defendant submitted a copy of

the monthly statement to SBC with certain charges

having been blacked out. The remaining charges reflect

that the defendant made purchases at Verizon Wireless

($552.05); Microsoft Support ($524.94); Ridgefield

Office Supply in Ridgefield ($106.35); Arman Garage in

New York, New York ($48); multiple fuel purchases

($339.49); and a finance charge ($31.83). At the bottom

of the invoice, the defendant handwrote instructions,

directing Gollinger to pay the entire balance and then

deduct $526.30 from his paycheck.

On December 7, 2007, the defendant issued an SBC

check payable to the order of ‘‘American Express’’ in

the amount of $2128.96. The check was issued using

the new system and signed only by the defendant.
On appeal, the defendant renews the argument we

addressed in part I B 1 of this opinion, arguing that

the state neither presented evidence that SBC had not

authorized the payment nor proved that the charges

were in fact personal rather than business expenses.

We disagree.

As we concluded in part I B 1 of this opinion, the state

presented sufficient evidence for the jury reasonably

to infer that SBC had not agreed to compensate the

defendant for his personal expenses. Furthermore, having reviewed the evidence in the case, we conclude that

the state presented sufficient evidence to allow the jury

reasonably to infer that the purchases made with the

credit card were not legitimate business expenses. We

reach this conclusion for the following reasons.

The jury reasonably could have inferred that the

defendant had no SBC authorization to issue the checks

and was trying to avoid detection because three of the

five checks used had only one signature in violation of

the company policy and the consulting agreement. Such

an inference is further supported by Dober’s testimony

at trial that he did not sign the remaining two checks.

Moreover, the jury reasonably could have rejected

the defendant’s notations on the statements as illegitimate on the basis of a simple comparison between

the history of the charges and corresponding payments

made by the defendant. The evidence clearly shows

that as of August 28, 2007, the account had a balance

of $1134.12. The defendant issued two SBC checks,

presumably to pay for business expenses, against these

charges for a total of $967.68, leaving an unpaid balance

of $166.44.21 The September 28, 2007 statement reflects

that the defendant had made new charges totaling

$3605.93. Out of that total, his notations identified

$2675.04 as supposedly legitimate business expenses,

and the defendant issued an SBC check for the corresponding amount, leaving an unpaid balance of $1097.33.

At that point, the only reasonable inference that could

have been made is that the defendant had paid for

all legitimate business expenses up to date, and the

remaining balance, therefore, represented personal

expenses ineligible for compensation. The October 28,

2007 statement reflects that the defendant had made

$288.15 in new charges, compelling a reasonable inference that no more than the total of the new charges

in the October statement can potentially qualify as a

business expense. The evidence, however, clearly

shows that the defendant issued a company check totaling $1385.48—the exact sum of the new charges

reflected in the October statement and previously

unpaid balance.22 On the basis of this comparison, and

the inference that the defendant was trying to avoid

detection by issuing three checks with one signature

and two checks with suspect signatures of Dober, the

jury reasonably could have concluded that the defen-
dant’s invoices were not credible and rejected the defendant’s theory of defense.

C

The defendant next claims that there was insufficient

evidence to support his conviction of seven counts of

larceny in the third degree in violation of § 53a-124

(a) (2).23

1

Count Eight-–Pite Law Office, LLC

Additional facts pertaining to this count follow. As

we previously stated in part I A 1, during the defendant’s

tenure at SBC, David Pite had been the defendant’s

counsel in his negotiations over the Ridgefield Farms’

outstanding debt to Webster Bank. On October 30, 2007,

Pite Law Office, LLC (law office) sent a $1050 invoice

to SBC for ‘‘legal services rendered from June 1, 2007,

through October 31, 2007.’’24 The specific charges were

detailed as ‘‘[t]elephone conferences with Attorney

Gfeller and her associate regarding [SBC] checks, pleadings, court notices and collection settlement negotiations for doubtful accounts. Review of agreements and

business restructuring.’’ On November 19, 2007, the

defendant issued the law office an SBC check for the

full amount. The check was issued on the new computer

system and had only the defendant’s signature.

On December 1, 2007, the law office sent a $962.50

invoice to SBC for ‘‘legal services rendered from

November 1, 2007, through November 30, 2007,’’ regarding the SBC ‘‘[a]cquisition.’’25 The invoice detailed the

charges as ‘‘[a]dditional telephone conferences with

Attorney Rose regarding [SBC] real estate holdings and

Food Terminal Market structure. Drafted release as

requested and correspondence to Bank Counsel.’’ On

December 12, 2007, the defendant paid the invoice with

an SBC check signed by the defendant only.

On January 8, 2008, the defendant, purportedly acting

on behalf of SBC, signed a retainer agreement with the

law office to ‘‘represent [SBC] in the following matters:

general corporate matters and litigation; including

Vande Rose Foods, LLC and Edart Trucking disputes.’’

The agreement called for an initial retainer fee of $2500

to be paid by SBC to the law office. On January 11,

2008, the defendant issued an SBC check in the amount

of $2500. The check was issued on the new system and

had the defendant’s signature only.

At trial, when asked to explain the nature of the

charges in the December 1, 2007 invoice, Pite testified

that the charges reflected the work he had done ‘‘in

connection with the Vande Rose litigation . . . .’’ Pite

further testified that he started working on the Vande

Rose matter ‘‘in the fall,’’ 2007, and that Vande Rose

‘‘just didn’t sue [SBC] until January of 2008.’’ As to the

October 30, 2007 invoice, Pite admitted that Attorney
Gfeller, whose name appeared in the invoice, was, at

the time, an attorney for Webster Bank. In addition,

when asked as to why the retainer agreement had not

been signed by SBC president and owner Bawarsky,

Pite explained that the defendant asked him ‘‘to do it

and said that he was authorized to sign’’ the retainer

on behalf of the company. Ultimately, Pite testified that

he billed SBC for his services because he ‘‘must have

done work [for SBC].’’ He added, however, that

‘‘because [he] felt bad having to bill it,’’ he ‘‘courtesied’’

SBC some of his time in the invoices.

The state presented testimony of Hecht who had been

representing SBC and Bawarsky personally at the time.

Hecht testified that Pite had been authorized to represent SBC in the Vande Rose dispute in January, 2008,

‘‘on the condition that [the defendant] was going to pay

Mr. Pite’s legal fees.’’ Hecht specifically testified that

he had informed Pite of this condition during a telephone call he had made on January 18, 2008, and in an

e-mail he had sent to Pite following the telephone call.

The e-mail, which was entered at trial as a full exhibit,

stated, inter alia, the following: ‘‘This will confirm our

telephone conversation earlier today regarding the suit

in Federal Court by Vande Rose against [SBC] and [the

defendant]. You have confirmed that [the defendant]

has hired you to appear on behalf of both defendants.

You also indicated that you believe that Vande Rose

will be withdrawing the counts directed against [the

defendant] personally. I represent Henry Bawarsky,

sole stockholder of [SBC]. He has no objection to you

appearing on behalf of [SBC], with the understanding

that [the defendant] is responsible for your fees.’’

(Emphasis added.)

In his testimony, Pite disputed Hecht’s recollection

of the terms of the agreement. He acknowledged that

he had received the e-mail from Hecht, but testified

that, once he had realized that the terms in the e-mail

had been stated inaccurately, he called Hecht and

informed him of the inaccuracy. To support Pite’s testimony, the defense produced a copy of Hecht’s e-mail,

bearing Pite’s handwritten note purportedly made during a phone call Pite had made following the receipt

of the e-mail, correcting Hecht’s understanding of the

terms of the agreement.26

In his brief, the defendant argues that, even if all of

the evidence presented by the state were to be credited

by the jury, it was nevertheless insufficient to sustain

his conviction on this count. Specifically, the defendant

argues that the state ‘‘was required to prove not only

that [SBC] paid Attorney Pite, but that any such payments were for work for which [SBC] had not agreed

to pay.’’ We are not persuaded.

First, the jury reasonably could have concluded that

it was the defendant who was responsible for paying

Pite’s legal fees accrued in connection with the Vande
Rose litigation. At trial, Hecht testified that that was

his understanding of the agreement. The jury, of course,

was free to credit his testimony over Pite’s testimony

to the contrary. Thus, the jury reasonably could have

concluded that the retainer fee of $2500 as well as the

December 1, 2007 invoice for $962.50 that Pite had

identified at trial as having been prepared in connection

with Vande Rose matter had not been authorized by

SBC.

Second, even if the jury were to determine that Pite

had been retained by SBC in January, 2008, making it

responsible for paying his fees, the jury reasonably

could have concluded that charges from prior to that

time were not legitimate. Furthermore, as is the case

in other counts, the checks were signed by the defendant only despite the clause in the consulting agreement

explicitly requiring a written authorization by Bawarsky

before any funds could be paid out to a third party.

Additionally, Pite had not been formally retained to

provide legal services to SBC until January, 2008; by

that time, however, Pite had billed SBC on two separate

occasions. From that evidence, the jury reasonably

could have inferred that Bawarsky had not authorized

the payments of the two invoices, and that Pite had not

been retained by SBC to provide legal services at the

time, despite his testimony that he ‘‘must have done

work [for SBC].’’ The jury also reasonably could have

inferred that the post hoc creation of the January

retainer agreement had been done by the defendant in

an attempt to legitimize his previous payments to Pite.

Moreover, the jury reasonably could have questioned

the likelihood of Pite representing SBC in a complicated

‘‘litigation of a large bill’’ concerning a ‘‘great amount

of money,’’ for approximately five months without any

formal agreement. This inference is furthered strengthened by the fact that Bawarsky had an attorney who

had been representing his interests at the time.

Finally, the jury reasonably could have inferred that

the services SBC had been billed for in the October 30,

2007 invoice had not been performed for its benefit,

but rather for that of the defendant personally. The

invoice clearly states that the charges stem from conferences with an attorney from Webster Bank ‘‘regarding

[SBC] checks, pleadings, court notices and collection

settlement negotiations for doubtful accounts. Review

of agreements and business restructuring.’’ At trial, Pite

testified that he had represented the defendant in the

negotiations with the Webster Bank that resulted in the

signing of the forbearance agreement on October 22,

2007. The jury also heard testimony that the defendant

had paid his debt to Webster Bank with SBC checks.

In addition, the forbearance agreement specified that

Webster Bank had ‘‘commenced a collection action’’

against the defendant. On the basis of that evidence,

the jury reasonably could have inferred that the charges

in the October 30, 2007 invoice reflected legal services
that had been performed for the defendant personally.27

2

Count Nine–U.S. Bank Ridgefield Farms Credit Card

Additional facts pertaining to this count follow.

Ridgefield Farms held a credit card issued by U.S. Bank

from prior to 2005. At trial, the representative of the

bank, John Shaw, testified that approximately in September, 2007, the bank suspended the credit card

account because no payments had been made for at

least ninety days preceding the suspension. Shaw further testified that the unpaid balance on the account

equaled $3721. On November 19, 2007, the defendant

issued an old system SBC check payable to the order

of U.S. Bank in the amount of $3721. The check was

handwritten and signed only by the defendant.

In his brief, the defendant renews the argument we

addressed in part I A 1 of this opinion, arguing that

the state did not ‘‘put on any evidence suggesting that

[SBC’s] payments did not result in a corresponding

reduction of [SBC’s] debt to Ridgefield Farms.’’ Once

again, we are not persuaded by the defendant’s

argument.

As we concluded in part I A 1 of this opinion, the

jury reasonably could have inferred that the defendant

acted without SBC’s consent by issuing a handwritten

company check with only his signature. In addition, on

the basis of the testimony and evidence presented at

trial, the jury also reasonably could have determined

that SBC’s debt to Ridgefield Farms did not reach the

extent claimed by the defendant or that it did not exist

at all.

3

Count Ten–U.S. Bank Visa Credit Card

Additional facts pertaining to this count follow. During his tenure at SBC, the defendant held a personal

credit card issued by the U.S. Bank. From August 4,

2007, through September 5, 2007, the defendant made

multiple purchases with the card, which amounted to

a total of $5331.85. The credit card statement for that

period, introduced by the state at trial, reflected that

the defendant made purchases at American Airlines

($298.60); Massage Envy Country ($49); Millilo Farms

in Ridgefield ($39.63); Impark in New York, New York

($33); Express in White Plains, New York ($61.81); The

Gap in White Plains, New York ($82.06); Bloomingdale’s

in White Plains, New York ($33.24); Nordstrom in White

Plains, New York ($98.69); Barney’s in White Plains,

New York ($56.61); Fandango.com ($33); Manisses/1661

Inn on Block Island, Rhode Island ($836.20); Caraluzzi’s

in Wilton ($94.99); Hi Speed Ferry, Rhode Island

($67.50); Ridgefield Liquor Shop in Ridgefield ($43.98);

Dead Eye Dicks on Block Island, Rhode Island ($95.92);

Stop & Shop in Ridgefield ($49.73); Aldo’s Moped, Inc.
on Block Island, Rhode Island ($66); The Moped Man

on Block Island, Rhode Island ($69.85); Trader Joe’s in

Danbury ($110.67); Verizon Wireless ($1059.87); Bed

Bath & Beyond in Danbury ($211.98); The Sports

Authority in Danbury ($195.96); The Ridgefield Supply

in Ridgefield ($54.02); Shell Oil in Cross River, New

York ($88.70); Macy’s in Danbury ($580.31); Luc’s Cafe ́

Restaurant in Ridgefield ($112.28); Kohl’s in Ridgefield

($42); Progressive Insurance ($500); and Comcast Cable

($266.25). During the same period, the defendant also

incurred a finance interest charge of $219.67.

On September 7, 2007, the defendant issued an SBC

check payable to the order of ‘‘Visa’’ in the amount of

$2849.25. The check was issued using the old computer

system, the corresponding credit card account number

was handwritten in, and the check had only the defendant’s signature.

On appeal, the defendant renews the argument we

addressed in part I B 1 of this opinion, arguing that

the state neither presented evidence that SBC had not

authorized the payment nor proved that the charges

were in fact personal rather than business expenses.

We disagree.

As we concluded in part I B 1 of this opinion, the state

presented sufficient evidence for the jury reasonably

to infer that SBC had not agreed to compensate the

defendant for his personal expenses. Similarly, we conclude that the state presented sufficient evidence, in

the form of the credit card statement, for the jury, using

its common sense and experiences, reasonably to infer

that the charges were personal. Moreover, the jury reasonably could have concluded that, by not adhering to

the SBC policy requiring two signatures and the terms

of the consulting agreement, the defendant had

attempted to avoid detection because the purchases

were not legitimate business expenses.

4

Count Eleven–Exxon Credit Card

Additional facts pertaining to this count are as follows. The defendant’s wife held an Exxon Mobile credit

card issued by the Citi Bank. During the defendant’s

tenure at SBC, the card was being used continuously

to make purchases at 80 Bedford Road in Katonah, New

York ($748.42); 2507 Albany Avenue in West Hartford

($939.93); 31 Danbury Road in Ridgefield ($150.02); 200

Sargent Drive in New Haven ($94.89); Route 35 & Bouton Road in South Salem, New York ($138.24); 30 South

Kinderkamack Road in Montvale, New Jersey ($105.61);

680 East Main Street in Mount Kisco, New York ($5.14);

192 North Bedford Road in Mount Kisco, New York

($20.01); 681 Piermont Road in Closter, New Jersey

($69.30); and 209 Route 3 East in Secaucus, New Jersey ($40.13).

During that period, the defendant issued four SBC
checks payable to the order of ‘‘Exxon Mobil.’’28 The

first check was issued on October 11, 2007, using the

old computer system. The check was in the amount of

$253.90 and was signed by the defendant only. The

second check was issued on October 18, 2007, using

the new system. That check was in the amount of

$475.51 and had the defendant’s signature and a signature resembling Dober’s. At trial, however, Dober did

not recognize the signature as his. The third check was

issued on November 19, 2007, also using the new system. It was in the amount of $326.54 and signed only

by the defendant. The last payment was made by an

old system check issued on December 24, 2007. It was

handwritten in the amount of $730 and had only the

defendant’s signature.

At trial, the state presented testimony of Judith Ledoux, the bursar of the University of Hartford. Ledoux

testified that in the fall of 2007, the defendant’s sons

were registered as students at the university. According

to Ledoux, one of the sons had an automobile. She

further testified that the files of the defendant’s sons

contained several off-campus addresses, including 18

Temple Street in Hartford, and Closter, New Jersey.29

When asked whether she considered Albany Avenue as

being close to the university’s campus, Ledoux testified

that she did.

In addition to the testimony of Ledoux, the state

introduced testimony of Mel Cartoceti, an investigator

for the state. Cartoceti testified that, according to his

measurements, the distance between 2507 Albany Avenue in West Hartford and 18 Temple Street in Hartford

was 4.31 miles. He also testified that the distance

between 18 Temple Street in Hartford and the University of Hartford was 3.09 miles.

Finally, Cintron, who worked in the same office as

the defendant at SBC, testified that, between September, 2007, and January, 2008, she had seen the defendant

at SBC in New Haven every work day. Similarly, Greenfield testified that, as he understood it, the defendant

had been at the SBC office ‘‘on a daily basis.’’

On appeal, the defendant argues that the state

‘‘offered no evidence with regard to what was purchased, by whom, or for what purpose.’’ ‘‘Absent such

evidence,’’ he argues, ‘‘the inference the [state] asked

the jury to draw—i.e., that these charges represented

personal purchases by [the defendant,] rather than

[SBC] expenses—amounts to rank speculation, and is

impermissible.’’ (Emphasis in original.) We disagree.

First, the jury reasonably could have inferred that a

credit card that had been issued to the defendant’s wife,

in fact, had been used by his wife and possibly other

family members rather than by SBC employees. That

inference is supported by the testimony of Ledoux and

Cartoceti at trial that, at the time, in addition to residing
in Closter, New Jersey, the defendant’s sons attended

college and resided in a close proximity to 2507 Albany

Avenue in West Hartford.30 Furthermore, the jury reasonably could have inferred that the defendant’s sons

had been using the card on the basis of the regularity

with which the charges at 2507 Albany Avenue had been

made. The credit card statements introduced at trial

clearly show that during the period from October, 2007,

through December, 2007, the card had been used at this

location twenty-three times. Similarly, the jury reasonably could have inferred that the twenty-four charges

at 80 Bedford Road in Katonah, New York, also had

not been made by the defendant, but rather someone

else. In making this inference, the jury could have relied

on its common experience and knowledge of the fact

that Katonah, New York, does not lie between the defendant’s residence in Ridgefield and the SBC office in New

Haven where, according to the testimony of Cintron and

Greenfield, he appeared every work day.

Second, having made this inference, the jury then

reasonably could have concluded that the charges made

by persons who had not been employed by SBC could

not have been legitimate business expenses of SBC. In

addition, the jury reasonably could have concluded that

the purchases had been made for personal expenses

on the basis of the evidence showing that the defendant

clearly violated the consulting agreement and the company policy regarding two signatures on all SBC checks,

and that he handwrote old system checks long after

the new system had become fully operational.

In his brief, the defendant argues that, even if some

of these charges were incurred at a gas station near

the homes of the defendant’s sons, the state ‘‘offered

no evidence that . . . they were incurred for the sons’

personal use, and were not [SBC] expenses.’’ To support

his argument, the defendant points to evidence at trial

showing that his sons occasionally had performed some

work at SBC in New Haven. Of course, the jury was

free to reject the notion that SBChad chosen to compensate the defendant’s sons for their work by paying the

credit card account issued in their mother’s name as

implausible. In addition, the defendant lacked the necessary authority to make such payments under the

terms of the consulting agreement.

5

Count Twelve–BMW Leasing Account

Additional facts pertaining to this count follow. During the defendant’s tenure at SBC, his wife leased a

BMW automobile from BMW Financial Services with a

monthly payment of $539.51.

On November 30, 2007, the defendant issued an SBC

check payable to the order of ‘‘BMW Financial Services.’’ The check was in the amount of $1356 and signed

only by the defendant. The defendant submitted to Gol-
linger a handwritten invoice that purported to list the

mileage that he had driven for business purposes in

September, October, and November, 2007. On the bottom of the invoice, the defendant wrote that he had

travelled 2825 miles and then multiplied that mileage

by $0.48 for a total of $1356. The invoice also included

a handwritten notation, directing to ‘‘[m]ake check

directly to BMW.’’

At trial, Gollinger testified that, in the process of

creating an internal SBC account number to generate

a company check on the new system, she entered the

name of the defendant’s wife as the leaseholder.

According to Gollinger, when the defendant learned of

that, ‘‘he got very upset with me because I put her name

on that actual account, so I took it off.’’

Thereafter, on January 15, 2008, the defendant issued

a second SBC check payable to the order of ‘‘BMW

Financial Services.’’ That check was in the amount of

$394.56 and was signed only by the defendant. The

defendant submitted a calendar page for December,

2007, with multiple handwritten entries purportedly listing the mileage he had travelled for business purposes

during that month. According to the defendant’s handwritten notation, he had travelled 822 miles for business

during that month for a total of $394.56.

On appeal, the defendant argues that the state failed

to present evidence that he ‘‘did not, in fact, use his

wife’s car to drive the number of miles he claimed for

business purposes. Instead, the [s]tate asked the jury

to infer, from the fact that the car was leased in his

wife’s name, that [the defendant] was stealing [SBC’s]

money to pay for his wife’s car, rather than seeking

‘reimburs[ment] for out of pocket . . . travel

expenses,’ pursuant to the [consulting agreement].

Absent any evidence to support it, any such inference

was not only contrary to all the evidence, but pure

speculation, and not permissible.’’ We are not persuaded.

First, as is the case with other counts, the jury reasonably could have inferred that the payments to BMW

Leasing were unauthorized by SBC because the company checks, although issued on the new system, lacked

the required second signature in clear violation of the

company policy and the terms of the consulting

agreement regarding third party payments. In addition,

the jury reasonably could have inferred that the defendant had been trying to avoid detection on the basis of

Gollinger’s testimony that the defendant became ‘‘very

upset’’ and insisted that she remove any reference to

his wife’s name from the SBC computer system. Furthermore, the jury reasonably could have inferred that

the defendant’s invoices did not conform to the requirement ofthe consulting agreementforreimbursable business expenses to be accompanied by ‘‘documentation

verifying said expenses.’’ (Emphasis added.) The
invoices are handwritten, provide scant details and, on

their own, offer no verification for the claims made

therein.

Second, the invoices submitted by the defendant

reflect that, between September and December, 2007,

he had travelled 3647 miles for business purposes. At

trial, however, both Cintron and Greenfield testified

that the defendant appeared in the office on a daily

basis. See State v. Pearl, 28 Conn. App. 521, 528–30,

613 A.2d 304 (1992)(finding that discrepancies between

witnesses’ observations and claims of overtime submitted for payment supported reasonable inference that

defendant did not work hours claimed).

6

Count Thirteen–Greater Huron Development

Corporation/Keane & Beane, P.C.

Additional facts pertaining to this count are as follows. Prior to his tenure at SBC, the defendant, both

personally and as one of the owners of Ridgefield

Farms, had been Involved in a legal dispute brought by

the Greater Huron Development Corporation (GHDC)

in the United States District Court for the Southern

District of New York. In that matter, the defendant was

represented by Attorney David Glasser of the law firm

Keane & Beane, P.C.

On August 10, 2007, the defendant entered a court

approved settlement, resolving the dispute. Under the

terms of the settlement, the defendant was to begin

making monthly payments to GHDC in the amount of

$1392.04. On September 10, 2007, the defendant issued

an SBC check payable to the order of ‘‘GHDC’’ in the

amount of $1392.04. The check was issued using the old

computer system and was signed only by the defendant.

On December 10, 2007, Keane & Beane, P.C., sent an

invoice to the defendant in the amount of $35,000. On

January 1, 2008, the defendant issued a company check

payable to the order of ‘‘Keane & Beane, P.C.’’ in the

amount of $1000. The check had only the defendant’s

signature.

In his brief, the defendant renews the argument we

addressed in part I A 1 of this opinion, arguing that the

state did not present evidence proving that SBC funds

had not been used to satisfy the SBC’s outstanding debt

to Ridgefield Farms. Without such proof, he argues, the

conviction on this count cannot stand. We disagree.

As we stated in part I A 1 of this opinion, the jury

was free to disbelieve the defendant’s theory of defense

and conclude that SBC owed no money to Ridgefield

Farms. In addition, in this count, the jury reasonably

could have concluded that the defendant’s clear violation of the company’s policy requiring two signatures

on all checks as well as his violation of the terms of

the consulting agreement was indicative of his intent
to embezzle SBC funds to satisfy his personal debts.

7

Count Two–American Express Credit Card 009

Additional facts pertaining to this count follow. During his tenure at SBC, the defendant held an individual

credit card account with American Express. The statement ending on August 8, 2007, reflects that the defendant made purchases at Wal-Mart in West Haven

($697.20); Maguire’s Bayfront Restaurant in Ocean

Beach, New York ($512.88); Gotomypc.com ($269.40);

Fancy Food Show in New York City, New York ($120);

made multiple fuel purchases ($456.97); paid a parking

lot fee in New York City, New York ($19); and several

E-ZPass charges ($245). The statement ending on September 9, 2007, reflects that the defendant made purchases at Tiger Direct.com ($2595.55); and a service

charge with OnStar ($17.97).

On September 21, 2007, the defendant issued an SBC

check payable to the order of ‘‘American Express’’ in

the amount of $2828. The check was issued using the old

computer system and was signed only by the defendant.

For the next statement cycle ending on October 8,

2007, the defendant submitted a copy of his monthly

statement with the following charges claimed as business expenses: OnStar service charge ($20.09); ‘‘computers/printers’’ at Tiger Direct.com ($339.98); ‘‘file

cabinets’’ at Wal-Mart ($240.92); La Quinta Inn in New

Haven ($110.88); and several fuel purchases ($135.14).

On October 19, 2007, the defendant issued an SBC

check payable to American Express in the amount of

$847.01. The check was issued using the new computer

system and it was signed by the defendant and Dober.

For the statement cycle ending on November 8, 2007,

the defendant submitted a copy of his monthly statement with the following charges claimed as business

expenses: Park Avenue Garage in New York City, New

York ($33.13); Machine Shop in New York ($169);

OnStar service charge ($20.09); Route 7 Grill in Great

Barrington, Massachusetts ($1238.82); and multiple fuel

purchases ($192.52).

On November 30, 2007, the defendant issued an SBC

check payable to the order of ‘‘American Express’’ in

the amount of $2486.43. The check was issued using

the new system and was signed only by the defendant.

The statement cycle ending on December 8, 2007,

reflects that the defendant made purchases at Tailgators

Restaurant in Derby ($46.58); Croton Creek Steakhouse

in Croton Falls, New York ($170.14); Romeo and Cesare

in New Haven ($160); Morton’s of Hartford in Hartford

($310.60); Joseph’s Steakhouse in Bridgeport ($349.47);

Cru Restaurant in New York City, New York ($327.44);

Credit Alert membership fee ($119.99); Northwest Airlines ‘‘Passenger . . . Friend/Jamie’’ ($71.25); North-
west Airlines ‘‘Passenger . . . Friend/Phili[p]’’

($71.25); Amtrak ‘‘Passenger . . . Stone/Richard’’

($437); American Airlines ($1588.70); OnStar service

fee ($20.09); E-ZPass ($155); Verizon Wireless ($564.96);

L.L.Bean Direct ($269.45); Rio Suites in Las Vegas,

Nevada ($422.19); PayPal ($25); a finance charge

($350.55); and multiple fuel purchases ($267.66).

On December 21, 2007, the defendant issued an SBC

check payable to the order of ‘‘American Express’’ in

the amount of $5157.64. The check was issued using

the old system and was signed only by the defendant.

On this count, the defendant was charged with larceny in the first degree. The jury, however, acquitted

him of that charge and of larceny in the second degree,

but found him guilty of larceny in the third degree.

The defendant renews the argument we addressed

in part I B 1 of this opinion, arguing that the state

neither presented evidence that SBC had not authorized

the payment nor proved that the charges were in fact

personal rather than business expenses. We disagree.

As we concluded in part I B 1, there was sufficient

evidence for the jury reasonably to infer that the defendant was to be reimbursed by SBC for only verified

legitimate business expenses. Moreover, the jury reasonably could have inferred the lack of authorization

in this count from the fact that three of the four checks

used by the defendant did not have a second signature

explicitly required by the company policy and the consulting agreement. In addition, the jury could also find

support for that inference in the fact that the December

21, 2007 old system check was handwritten months

after the new system became fully operational when

all of the new accounts were supposed to be processed

through the new system.

On the basis of this inference, the jury then reasonably could have concluded that the charges for the

Credit Alert membership fee, Northwest Airlines ticket

for the defendant’s wife, a purchase at L.L.Bean Direct,

and lodging in Rio Suites in Las Vegas, Nevada,reflected

in the December 9, 2007 statement, were unauthorized

personal expenses.31 Furthermore, in the November 8,

2007 invoice the defendant claimed to have made business purchases totaling $1653.56. The corresponding

SBC check, however, totaled $2486.43. On the basis of

this evidence, the jury reasonably could have inferred

that the difference of $832.87 between the invoice and

the company check represented an unauthorized personal expense. The jury could find further support for

this inference in the fact that all business expenses

from the previous monthly cycle purportedly had been

paid off in full by the defendant, negating any need to

make an additional payment in November.

II

PROSECUTORIAL IMPROPRIETY
The defendant next claims that he was deprived of

a fair trial by the prosecutor’s statements made during

the state’s closing argument. Specifically, the defendant

argues that the prosecutor, without any evidentiary

basis, argued in his rebuttal that Bawarsky realized the

defendant had been stealing from SBC and asked for

his son’s help to stop the theft. We are not persuaded.

The following additional facts are relevant to this

claim. During the closing arguments, defense counsel

tried to portray David Bawarsky as someone who had

been trying to prevent the defendant from becoming

the new owner of SBC because he wanted to preserve

his own interests in the company. In furtherance of

that theory, defense counsel argued to the jury that the

defendant ‘‘was caused to be ejected from the company

in late January, he was caused to be ejected and a name

surfaced that had never surfaced in the negotiations or

any legal document at all and that name as you now

know is David Bawarsky, the son of Henry who had

been thrown out of the company twenty years earlier

. . . .’’

During the rebuttal argument, the state addressed the

defense’s theory, and the following colloquy ensued.

‘‘[The Prosecutor]: You heard argument about David

Bawarsky coming in, he’s been thrown out in the 80’s,

now some twenty years later he comes back, well David

Bawarsky was Henry’s son. And isn’t it okay for a

father to ask his son for help?

‘‘[Defense Counsel]: Objection, Judge, there’s no testimony that Mr. Bawarsky did, that Henry Bawarsky did.

‘‘The Court: That’s true. I will strike that. There’s no

evidence of that in this trial.

‘‘[The Prosecutor]: But David pulls up and outs [the

defendant]. If you had an employee that was stealing

from you would you keep him there?

‘‘[Defense Counsel]: Objection, Judge, I was precluded from arguing that Mr. Bawarsky was the victim,

so how can [the prosecutor] now target that . . . [the

defendant] was stealing from David Bawarsky. . . .

‘‘The Court: I’m going to allow it, it’s argument. It’s

appropriate argument.’’ (Emphasis added.)

In addition, when arguing as to count four, the prosecutor stated the following: ‘‘Does it make much sense

for [SBC] to be paying a commission to a consultant

and then to his company, and then to the third company

that was involved which is West Conn. Does that really

make sense? Does it make logical business sense? Not

if you know about it, but if you don’t know because

the only person who does know is the person writing

the checks, you don’t find out about it until later, then

when you do you shut it down.’’32 (Emphasis added.)

We begin our discussion by setting forth relevant
legal principles governing the claims of prosecutorial

impropriety. ‘‘In analyzing claims of prosecutorial

impropriety, we engage in a two step analytical process.

. . . The two steps are separate and distinct. . . . We

first examine whether prosecutorial impropriety

occurred. . . . Second, if an impropriety exists, we

then examine whether it deprived the defendant of his

due process right to a fair trial. . . . In other words, an

impropriety is an impropriety, regardless of its ultimate

effect on the fairness of the trial.’’ (Internal quotation

marks omitted.) State v. Ross, 151 Conn. App. 687, 693,

95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d

272 (2014).

To determine ‘‘whether any improper conduct by the

[prosecutor] violated the defendant’s fair trial rights is

predicated on the factors set forth in State v. Williams,

[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due

consideration of whetherthat misconduct was objected

to at trial. . . . These factors include: the extent to

which the [impropriety] was invited by defense conduct

or argument . . . the severity of the [impropriety] . . .

the frequency of the [impropriety] . . . the centrality

of the [impropriety] to the critical issues in the case

. . . the strength of the curative measures adopted

. . . and the strength of the state’s case. . . .

‘‘[W]hen a defendant raises on appeal a claim that

improperremarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden

is on the defendant to show, not only that the remarks

were improper, but also that, considered in the light of

the whole trial, the improprieties were so egregious that

they amounted to a denial of due process.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Payne, 303 Conn. 538, 561–63, 34 A.3d 370 (2012).

Furthermore, ‘‘prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing

arguments. . . . In determining whether such [an

impropriety] has occurred, the reviewing court must

give due deference to the fact that [c]ounsel must be

allowed a generous latitude in argument, as the limits

of legitimate argument and fair comment cannot be

determined precisely by rule and line, and something

must be allowed for the zeal of counsel in the heat of

argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided

the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . .

‘‘Nevertheless, the prosecutor has a heightened duty

to avoid argument that strays from the evidence or

diverts the jury’s attention from the facts of the case.

[The prosecutor] is not only an officer of the court,

like every attorney, but is also a high public officer,

representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great

influence [on] jurors. His conduct and language in the

trial of cases in which human life or liberty [is] at stake

should be forceful, but fair, because he represents the

public interest, which demands no victim and asks [for]

no conviction through the aid of passion, prejudice, or

resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted

strictly according to the sound and well-established

rules which the laws prescribe. [Although] the privilege

of counsel in addressing the jury should not be too

closely narrowed or unduly hampered, it must never

be used as a license to state, or to comment [on], or

to suggest an inference from, facts not in evidence, or

to present matters which the jury ha[s] no right to

consider.’’ (Citation omitted; internal quotation marks

omitted.) State v. Ross, supra, 151 Conn. App. 693–94.

With these principles in mind, we now turn to the defendant’s claim.

On appeal, the defendant argues that ‘‘[t]hese assertions are simply, and undeniably, false—there was no

evidence whatsoever that Henry Bawarsky ever

believed that [the defendant] had stolen anything.’’

(Emphasis in original.) Furthermore, he continues,

these ‘‘false statements made by the [prosecutor] in

closing here were severe and went to ‘the very heart

of the case’—i.e., whether Henry Bawarsky consented

to the expenditures at issue.’’ We are not persuaded.

Having reviewed the record, we conclude that none of

the comments made by the state in its closing arguments

was improper. The first comment made by the state—

‘‘[a]nd isn’t it okay for a fatherto ask his son for help?’’—

clearly had been made in response to defense counsel’s

closing argument. See State v. Kendall, 123 Conn. App.

625, 643–44, 2 A.3d 990 (finding it properfor prosecutor,

following defendant’s closing argument, to highlight difference between state’s version and defendant’s version

of facts and inferences properly drawn from those

facts), cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).

Similarly, the second comment—‘‘[i]f you had an

employee that was stealing from you would you keep

him there?’’—also had been made in response to the

defense’s alternative theory that David Bawarsky was

trying to protect his own interests in SBC. In addition,

this comment can be fairly inferred from the facts in

the record. David Bawarsky did take control of the

company in 2008 and forced the defendant out with the

help of the New Haven police. See State v. Prioleau,

235 Conn. 274, 320, 664 A.2d 743 (1995) (‘‘[c]ounsel may

comment upon facts properly in evidence and upon

reasonable inferences to be drawn from them’’ [emphasis in original; internal quotation marks omitted]).

As to the final comment—‘‘you don’t find out about

it until later, then when you do you shut it down’’—it

too was not improper. At trial the state’s theory of the
case had been that the defendant had the control of

the company checkbook and used it to pay his personal

debts. Thus it was proper for the prosecutor to comment that once the defendant’s dealings had been discovered, he was forced out or ‘‘shut down.’’ See id.

We conclude that the state’s comments were not

improper and, accordingly, need not consider whether

any claimed impropriety deprived the defendant of his

right to a fair trial. See State v. Otto, 305 Conn. 51, 76

n.19, 43 A.3d 629 (2012).

III

RIGHT TO SPEEDY TRIAL

Finally, the defendant claims that his ‘‘convictions

should be vacated, because his right to a speedy trial

was violated.’’ Specifically, the defendant argues that

‘‘he was denied his right to a speedy trial when the

[s]tate failed to bring him to trial until four and a half

years after his arrest . . . .’’ Having reviewed the

record in the case, we conclude that the defendant

failed to preserve his constitutional claim at trial and,

thus, can only prevail on his claim if he satisfies the

test established by our Supreme Court in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).33

The following additional facts and procedural history

are relevant to this claim. On August 26, 2013, following

his convictions at trial, the defendant filed a motion for

‘‘judgment of acquittal or, in the alternative, to dismiss

for violation of his right to a speedy trial, or for a new

trial.’’ The court denied the defendant’s motion. OnApril

4, 2014, the court issued a written articulation of its

denial of the defendant’s motion. The articulation sets

forth the factual background as follows: The defendant

‘‘was arrested by warrant on December 18, 2008. Bond

was set on the warrant in the amount of $350,000. [The

defendant] posted the bond and was released from custody. His first court appearance was on January 5,

2009 . . . .

‘‘On February 10, 2009, he appeared and entered not

guilty pleas on all pending charges and elected to be

tried by a jury. Attorney Norm Pattis entered an appearance on behalf of [the defendant] on January 5, 2009,

and was his counsel until June 10, 2013. . . .

‘‘On December 30, 2009, [defense counsel] filed a

motion for a speedy trial. The case was assigned for

jury selection on January 7, 2010. Subsequently, the

statutory period for commencing [the defendant’s] trial

was tolled due to [defense counsel’s] involvement in

another trial. . . . [The defendant’s] case was then

assigned for jury selection on February 22, 2010.’’

On March 15, 2010, however, the defendant withdrew

his motion for a speedy trial. The transcript of the March

15, 2010 hearing reveals the following colloquy:

‘‘The Court: All right. Let me just indicate this is a
matter that was on the trial list. A motion for speedy

trial was filed by counsel. It had been—the running of

the statute had been tolled to this date because [defense

counsel] was on trial for a good bit of that period and

we set it down for today and what’s happening today?

* * *

‘‘[Defense Counsel]: I would like to withdraw that

motion, Judge. I’ve had discussions with the state and

there was a supervised pre-trial last week. We are withdrawing our speedy trial motion after discussions with

the state. In exchange the state is agreeing not to proceed on the thirty-two counts of forgery against [the

defendant], but has reserved the right to proceed evidentially as to those facts on the notice of uncharged

misconduct. We have reserved the right to oppose that

at the time of trial, but the current—the case going

forward would involve simply a one count claim of

larceny in the first degree.

‘‘And the reason that the parties reached this

agreement with court supervision is that the—the entity

that claims to be a victim, of course we dispute that

it’s a victim of anything other than the delusion of an

interlope probe, but the entity that claims to be a victim

went into bankruptcy and its records became the property of a trustee. The entity is now out of business and

fifty-eight boxes of items that both sides need to look

at now are reposed near the Foxboro Stadium in Massachusetts and we’re just going to need some time for

that, Judge.

‘‘So in—you know, clearly we know chaos benefitted

the defendant here, but the state wants the opportunity

to look at those records and on the theory that it will

A, do so and B, do the right thing, it’s persuaded we’re

right and potentially drop this case, we thought it was

in [the defendant’s] interest to withdraw the speedy

trial motion.

‘‘The Court: All right. And then assuming that’s done

with good faith in that you wouldn’t be—I mean, you

have the right to tomorrow file a speedy trial again.

‘‘[Defense Counsel]: There’s no gamesmanship going

on here.

‘‘The Court: All right. So the understanding is

‘‘[Defense Counsel]: Well, I can’t say that, I’m always

playing a game, but I mean I don’t have any—I don’t

have any intent [to] reclaim it.

‘‘The Court: I’m hoping this is a one-time—an exception to the usual.

‘‘[Defense Counsel]: Yeah.

‘‘The Court: And let me just ask you this, and the

understanding is to give the state the opportunity to

review the fifty-eight boxes and materials?
‘‘[Defense Counsel]: Correct and we’re going to look

at it as well, Judge.’’

Following the March 15 hearing, the case was docketed six dates in 2011 and two dates in 2012. Finally,

the jury selection commenced on April 26, 2013. The

defendant did not file another motion for a speedy trial

or indicate to the court ‘‘that he requested jury selection

to commence in 2011 or 2012’’ by motion or correspondence. The issue reemerged in his August 26, 2013

motion to dismiss.

We begin our analysis of the defendant’s claim by

setting forth the governing legal principles. ‘‘Both the

United States constitution and the constitution of Connecticut guarantee every criminal defendant the right

to a speedy trial. See U.S. Const., amend. VI; Conn.

Const., art. I, § 8. This guarantee protects against unreasonable delay between formal accusation and trial [that

would threaten] to produce more than one sort of harm,

including oppressive pretrial incarceration, anxiety and

concern of the accused, and the possibility that the

[accused’s] defense will be impaired by dimming memories and loss of exculpatory evidence.’’ (Internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578,

609–10, 758 A.2d 327 (2000).

In Connecticut, ‘‘General Statutes § 54-82m34 codifies

a defendant’s constitutional right to a speedy trial and

confers on the judges of the Superior Court the authority to make such rules as they deem necessary to establish a procedure for implementing that right. Pursuant

to that authority, the judges adopted Practice Book

§§ 43-39 through 43-41.’’35 (Footnote added.) State v.

Hampton, 66 Conn. App. 357, 366–67, 784 A.2d 444,

cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).

In his brief, the defendant argues that he is entitled

to a dismissal of his case because of the ‘‘extreme delay

and the severe prejudice [he] suffered as a result’’ of

the delay. For the following reasons, we decline to

review the defendant’s claim.

It is settled that ‘‘[p]ursuant to § 54-82m, the filing

of a motion for a speedy trial by the defendant is a

prerequisite to dismissal of the information. . . .

Therefore, before the defendant may move for dismissal, he must file a motion for a speedy trial. Furthermore, [Practice Book § 43-41] provides: Failure of the

defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right

to dismissal under these rules. Because a motion to

dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a

speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under

the rules.’’ (Internal quotation marks omitted.) State v.

Rodriguez, 47Conn. App. 91, 98–99, 702 A.2d 906 (1997),
cert. denied, 243 Conn. 960, 705 A.2d 552 (1998).

The record in this case establishes that the only

motion for a speedy trial that had been filed was voluntarily withdrawn by the defendant on March 15, 2010.36

Moreover, the record also indicates that the defendant

failed to file his motion to dismiss before the commencement of trial as required by § 43-41. These facts

lead us to conclude that, because he withdrew his

speedy trial motion and did not file a timely motion to

dismiss, ‘‘he is deemed to have waived his right to the

statutory protection afforded by § 54-82m.’’ Id., 99; see

also State v. Hampton, 66 Conn. App. 357, 368, 784 A.2d

444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).

Because the defendant failed to invoke the protection

of § 54-82m, his constitutional claim has not been preserved at trial and thus can only be afforded review

under the Golding analysis. See State v. Rodriguez,

supra, 47 Conn. App. 99. To obtain review of an unpreserved claim pursuant to Golding, the defendant must

present us with a record that is adequate for review

and affirmatively demonstrate that his claim is indeed

a violation of a fundamental constitutional right. See

State v.Elson, 311Conn. 726, 754–55, 91 A.3d 862 (2014).

Having examined the record, we conclude, however,

that it is not adequate for review.

In its articulation, the court found that the case ‘‘was

docketed six dates in 2011 [and] two dates in 2012

. . . .’’ Critically, however, the record is silent on the

issue of which party had requested the aforementioned

continuances, and the defendant failed to seek an articulation or rectification thereof. Without knowing who

requested the continuances and whatrationale was provided as justification for these requests, our review of

the defendant’s claim would amount to a speculation

in which we decline to engage.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant was acquitted of one count of larceny in the second

degree in violation of § 53a-123 (a) (2), and found not guilty as charged on

one count of larceny in the first degree, but guilty of a lesser included

offence of larceny in the third degree.

2 Under the terms of the agreement, the defendant’s pay would be reconciled on September 30 and December 31, 2007.

3 Richard Greenfield was, at the time, the defendant’s business partner in

the planned acquisition of SBC. Greenfield signed an identical consultant

agreement with SBC on August 3, 2007.

4 On August 10, 2007, SBC also amended its bank signature policy to require

two signatures on company checks. The defendant’s signature appears on

the form.

5 Even though some aspects of the company’s accounting were computerized, the software was described as ‘‘antiquated’’ at trial.

6 Testimony at trial established that the defendant, Auger, Marcy Gollinger,

Dober’s sister, who was in charge of SBC payroll and accounts payable,

and Ilka Cintron, an office worker at SBC, had the combination to access

the safe.

7 The new system used different SBC checks that were visually distinct

from the checks used in the old system.

8 The line of credit eventually was increased to $1.4 million. Greenfield

was a personal guarantor of the trade credit.
9 The defendant was also charged with thirty-three counts of forgery, but

these charges were dropped by the state.

10 Additionally, § 53a-119 (1) provides that ‘‘[a] person commits embezzlement when he wrongfully appropriates to himself or to another property

of another in his care or custody.’’

11 General Statutes (Rev. to 2007) § 53a-122 (a) provides in relevant part

that ‘‘[a] person is guilty of larceny in the first degree when he commits

larceny, as defined in section 53a-119, and . . . (2) the value of the property

. . . exceeds ten thousand dollars . . . .’’

12 The date had been determined by the terms ofthe forbearance agreement

reached between the defendant and Webster Bank. Upon repayment, Webster Bank agreed, inter alia, to withdraw its action against Ridgefield Farms

and to release an attachment on the defendant’s home.

13 Initially, the defendant attempted to satisfy the debt by sending SBC

checks that had been issued to the order of Ridgefield Farms. Webster Bank,

however, refused to accept these checks as payment because it was not

the named payee.

14 At trial, the defendant presented evidence that, prior to issuing the three

checks directly to Webster Bank, he attempted to endorse the SBC checks

issued to Ridgefield Farms in favor of Webster Bank, which it refused to

accept as being contrary to its policy. On appeal, the defendant cites to this

evidence as proof that he acted in good faith and only resorted to issuing

the SBC checks directly to Webster Bank after it would not accept his

previous forms of payment. This argument fails to explain why the defendant

did not attempt to satisfy his debt to Webster Bank in the most logical and

reasonable way—by depositing the checks to the Ridgefield Farms accounts

first and then paying Webster Bank—but instead kept trying to satisfy his

debt in a roundabout way. Thus, the jury reasonably could have discredited

this evidence.

15 Similarly, the jury was free to discredit the two documents submitted

by the defendant. We note, however, that even if the jury were to consider

the documents as proof of the debt’s existence, almost $36,000 would still

be left unexplained as the second document had the debt equal $50,339.49

by July, 2007. We further note that this difference is more than enough to

meet the $10,000 threshold of § 53a-122 (a) (2).

16 See footnote 8 of this opinion.

17 Dober did confirm the authenticity of his signature on the check for

$809.10.

18 We note that Dober was not asked to authenticate the signature on the

fifth check by the state. We further note that the sixth check that had two

signatures had been signed by someone other than Dober, and the state did

not seek to verify the authenticity of that signature at trial.

19 In his brief, the defendant cites to State v. Hedge, supra, 297 Conn. 621,

and State v. Green, 261Conn. 653, 804A.2d 810 (2002), as supporting his claim

that the state did not present sufficient evidence to sustain his conviction

on count four. Both decisions stand for the well-established principle of

Connecticut jurisprudence that insufficient evidence cannot support a criminal conviction.

In Hedge, our Supreme Court held that in ‘‘the absence of any evidence

that the defendant engaged in conduct reflecting an intent to sell drugs at

some location within the proscribed area, the defendant is entitled to a

judgment of acquittal’’ on that count. State v. Hedge, supra, 297 Conn. 661.

In Green, the court held that evidence showing that (1) the defendant

and his companions at the scene of the crime were friends, (2) the defendant

may have had a dispute with the victim who was a member of a gang,

and (3) the simultaneous drawing of the guns by the defendant and his

companions in an apparent response to a cry out to ‘‘shoot the [expletive]’’

was ‘‘too weak a foundation upon which to base an inference of an

agreement’’ to commit murder. State v. Green, supra, 261 Conn. 672–73.

In his brief, however, the defendant provides limited analysis and does

not explain how these particular cases offer support to his claim on appeal.

The only conclusion that the defendant seemingly draws from both cases

is that ‘‘the link between the facts proved with respect to count [four] and

the inference the state asked the jury to draw was even more tenuous than

the links the [court] found insufficient in Hedge and Green.’’ For the reasons

previously explained under this subsection, we disagree.

The defendant also cites State v. Godfrey, 39 Conn. App. 1, 663 A.2d

1117 (1995), appeal dismissed, 236 Conn. 904, 670 A.2d 1305 (1996) (appeal

dismissed as moot because of death of defendant), as supporting his claim

of insufficient evidence. In light of the procedural history of the case, we
conclude that its precedential value is questionable and, therefore, we follow

our Supreme Court’s well established precedent holding that on ‘‘appeal,

we do not ask whether there is a reasonable hypothesis of innocence,’’ but

rather ask ‘‘whether there is a reasonable view of the evidence that supports

the [jury’s] verdict of guilty.’’ (Internal quotation marks omitted.) State v.

Papandrea, supra, 302 Conn. 349.

20 General Statutes (Rev. to 2007) § 53a-123 (a) provides, inter alia, that

‘‘[a] person is guilty of larceny in the second degree when he commits

larceny, as defined in section 53a-119, and . . . (2) the value of the property

. . . exceeds five thousand dollars . . . .’’

21 We note that the evidence does not include a detailed business expense

invoice corresponding to the August 28, 2007 statement.

22 We also note that the record does not contain a detailed business

expense invoice corresponding to the October 28, 2007 statement.

23 General Statutes (Rev. to 2007) § 53a-124 (a) provides, inter alia, that

‘‘[a] person is guilty of larceny in the third degree when he commits larceny,

as defined in section 53a-119, and . . . (2) the value of the property . . .

exceeds one thousand dollars . . . .’’

24 The invoice separated the charges into two categories: (1) six hours

charged at $175 per hour; and (2) four hours at ‘‘no charge.’’

25 The invoice separated the charges into two categories: (1) five and onehalf hours charged at $175 per hour; and (2) two and one-half hours at

‘‘no charge.’’

26 Pite testified that the note read: ‘‘Call [Hecht] and told him erroneous,

[SBC] only retained me. Told [the defendant] to get separate counsel.’’

27 In his brief, the defendant argues that the state failed to present evidence

‘‘with regard to which of his services . . . Pite charged for, and which he

provided at no charge’’ in his October 30, 2007 invoice. Absent such evidence,

he argues, the jury was left ‘‘to speculate whether [Pite] billed [SBC] for

services which [SBC] did not agree to pay, or for services for which [SBC]

did agree to pay.’’ We are not persuaded by this argument.

On redirect, Pite explained the ‘‘no charge’’ entry on the December 1, 2007

invoice by stating ‘‘I generally would do that when I’m charging someone, you

know, many hours for looking over stuff that, you know, just as a courtesy,

so I believe it was just probably reviewing documents or reviewing invoices

or something that I felt, you know, even though it took time I gave him

a break.’’

The jury reasonably could have interpreted Pite’s explanation as simply

meaning that it was his practice not to charge his clients for the full amount

of time it had taken him to resolve a matter when he felt that it had taken

him too long. This interpretation is further supported by Pite’s statement

during cross examination that he ‘‘courtesied that time because [he] felt

bad having to bill [SBC] . . . .’’

28 Two checks were issued to the order of ‘‘Exxon Mobil,’’ one to the

order of ‘‘Exxon Inc.,’’ and one to the order of ‘‘Exxon Processing Center.’’

29 At trial, Ledoux was specifically instructed only to name the town and

the state for the second address.

30 We note that the sum of purchases made in West Hartford and Closter

is sufficient to meet the $1000 threshold of § 53a-124 (a) (2).

31 We note that the sum of the purchases reflected in the December 9,

2007 statement equals $5376.77, which is larger than the amount of the

December 21, 2007 check by $219.13. In his brief, the defendant argues that,

because the amount billed in the statement exceeded the amount paid by

the defendant, the state had to but ‘‘failed to prove that [SBC] funds were

used to pay any particular charge or charges.’’ We reject the defendant’s

argument. There was sufficient evidence to allow the jury reasonably to

conclude that the sum of unauthorized personal purchases was greater than

the gap between the statement balance and the check.

32 We note that the defendant failed to object to this comment. Nevertheless, the defendant’s claim may be reviewed. See State v. Stevenson, 269

Conn. 563, 572–73, 849 A.2d 626 (2004) (unpreserved claims of prosecutorial

impropriety reviewable without seeking review pursuant to State v. Golding,

213 Conn. 233, 567 A.2d 823 [1989]).

33 In State v. Golding, supra, 213 Conn. 239–40, our Supreme Court held

that ‘‘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.)

34 General Statutes § 54–82m provides: ‘‘In accordance with the provisions

of section 51–14, the judges of the Superior Court shall make such rules as

they deem necessary to provide a procedure to assure a speedy trial for

any person charged with a criminal offense on or after July 1, 1985. Such

rules shall provide that (1) in any case in which a plea of not guilty is

entered, the trial of a defendant charged in an information or indictment

with the commission of a criminal offense shall commence within twelve

months from the filing date of the information or indictment or from the

date of the arrest, whichever is later, except that when such defendant is

incarcerated in a correctional institution of this state pending such trial and

is not subject to the provisions of section 54–82c, the trial of such defendant

shall commence within eight months from the filing date of the information

or indictment or from the date of arrest, whichever is later; and (2) if a

defendant is not brought to trial within the time limit set forth in subdivision

(1) of this section and a trial is not commenced within thirty days of a

motion for a speedy trial made by the defendant at any time after such time

limit has passed, the information or indictment shall be dismissed. Such

rules shall include provisions to identify periods of delay caused by the

action of the defendant, or the defendant’s inability to stand trial, to be

excluded in computing the time limits set forth in subdivision (1) of this

section.’’ Section 54-82m was amended by No. 07-217, § 194, of the Public

Acts, which made technical changes to the statute that are not relevant to

this appeal. For purposes of clarity, we refer to the current version of

the statute.

35 Practice Book § 43-41 provides: ‘‘If the defendant is not brought to trial

within the applicable time limit set forth in Sections 43-39 and 43-40, and,

absent good cause shown, a trial is not commenced within thirty days of

the filing of a motion for speedy trial by the defendant at any time after

such time limit has passed, the information shall be dismissed with prejudice,

on motion of the defendant filed after the expiration of such thirty day

period. For the purpose of this section, good cause consists of any one of

the reasons for delay set forth in Section 43-40. When good cause for delay

exists, the trial shall commence as soon as is reasonably possible. Failure

of the defendant to file a motion to dismiss prior to the commencement of

trial shall constitute a waiver of the right to dismissal under these rules.’’

36 In his brief, the defendant argues that his withdrawal of the motion for

a speedy trial on March 15, 2010, did not constitute a ‘‘prospective waiver

of the right.’’ (Emphasis in original.) We are not sure what to make of the

defendant’s argument. The record is clear that the withdrawal of the motion

was not intended to act as a prospective waiver; as the court specifically

instructed the defendant that he had ‘‘the right to tomorrow file a speedy

trial again.’’ Thus, the defendant and the state knew that his withdrawal did

not constitute a prospective waiver, and that he could reassert his right

to a speedy trial at any time thereafter. He simply did not do so in a

timely manner.